Homeland Security released a final regulation Thursday taking control of decisions in border asylum cases, in a move analysts said is likely to lead to faster — and more — approvals.
The cases had been handled by immigration judges at the Justice Department, but under the new policy, they will shift to asylum officers at U.S. Citizenship and Immigration Services.
Immigrant-rights advocates have complained that the judges were too strict, and they hope for more leniency from USCIS.
“The current system for handling asylum claims at our borders has long needed repair,” said Homeland Security Secretary Alejandro Mayorkas.
The new policy, announced in a 512-page interim final rule, also erases some of the limits on asylum claims put in place by the Trump administration from 2018 to 2020 but had gotten snared in court challenges.
The new rule is a critical part of the Biden administration’s plans to revamp how illegal immigrants’ claims at the border are handled.
Biden officials had said they want those overhauls in place to prepare for an expected surge of illegal immigrants once pandemic-era border restrictions are fully ended.
Rosemary Jenks, vice president of NumbersUSA, which calls for stricter immigration policies, said the asylum changes are ripe for a legal challenge if someone has the standing to bring it.
Those covered by the policy have jumped the border and are in deportation proceedings. Under the law, Ms. Jenks said, their cases are supposed to be handled by immigration judges.
“This is yet another example of this administration essentially rewriting the law to suit their own needs,” she said.
Mr. Mayorkas said he hopes the new process will deliver faster decisions so that those who qualify for asylum get status faster and those whose claims fail can be deported faster.
Currently, cases can drag on for years, and the ability of illegal immigrants to jump the border, make an asylum claim and then gain a foothold in the U.S. while waiting for a decision on their case has become an incentive for people to stream in, filing what turn out to be bogus claims.
In 2020, more than 70% of asylum claims were rejected, according to the Transactional Records Access Clearinghouse at Syracuse University. In 2021, the rejection rate was 63%.
Mr. Mayorkas and Attorney General Merrick Garland, who oversees the immigration courts at the Justice Department, said they hope the changes help ease the backlog of cases that has built up before the immigration judges.
USCIS began hiring officers to hear the expected crush of asylum cases last summer, just as it announced the initial proposal.
Asylum officers are recruited heavily from ranks of refugee resettlement agencies and are likely to bring a markedly pro-asylum perspective, compared to more neutral immigration judges, Ms. Jenks said.
“It’s basically putting the U.N. in charge of our asylum decisions,” she said.
Asylum claims are similar to refugee claims, though refugees apply from outside the U.S. while asylum seekers are already on American soil.
Protections are supposed to be granted to those who claim fear of persecution back home because of their membership in a particular social class, such as their race, religion or political beliefs. In recent years, the definition has expanded to include some claims of spousal abuse and generalized violent crime.
Under the old system, an illegal immigrant who jumps the border and is caught can lodge a claim of “credible fear” of being sent back to those conditions at home. That determination is made by USCIS and is a lower standard than an actual asylum claim.
Those granted credible fear are then allowed to stay and pursue full claims of asylum, or other humanitarian protections.
Migrants approved for credible fear could be detained, but in reality, most are released with the hope they return for their hearings at some point before an immigration judge. Many do not.
Under the new system finalized Thursday, USCIS officers will still make the initial credible fear determination and then will get the first crack at the asylum decision, too.
If USCIS rejects an asylum claim, the migrant then gets another crack at making a case before an immigration judge. The Biden administration says those cases will have new controls to prevent them from dragging on.
The new system will be phased in, with only a limited number of cases at first, in order to give USCIS a chance to staff up.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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