What will the effect be of the Biden administration's new asylum regulation?
NORTH TEXAS — Voters repeatedly name the situation at the U.S.-Mexico border as one of the issues they care most about leading up to the November election.
The issues at the border are multifaceted, but one of the problems is how long the asylum process can last. It can take years from the time an asylum-seeker crosses the border to when they get their day in court.
The Biden administration recently issued a new regulation aimed at speeding up the process. However, not everyone is convinced that the move will help address the court backlog, and some worry about the cost.
What the new regulation would do
Put simply, this new regulation would allow asylum officers to reject migrants earlier in the process.
There are already certain bars that exist that make some migrants ineligible for asylum. These bars include if the migrant:
- Has been convicted of a "particularly serious crime"
- Is a threat to national security
- Has participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group or political opinion
- Has committed a "serious nonpolitical crime" outside of the U.S.
- Has been firmly resettled in another country before arriving in the U.S.
Right now, these bars are considered at a later step in the immigration process by an immigration judge. Under the new proposal, an asylum officer would be empowered to consider these bars during the credible fear interview, during which it's determined whether the asylum-seekers' claim is valid. This typically happens soon after a migrant enters the country.
Paul Hunker, former Chief Counsel for U.S. Immigration and Customs Enforcement in Dallas and current partner at immigration law firm DMCA, LLP, says it could be a problem having asylum officers make "very complicated decisions" in a short period of time.
"Even my attorneys would have difficulty making these calls and the judges would have difficulties making these calls," Hunker said.
In most cases, at the time of the credible fear interview, migrants have not had a chance to consult with a lawyer, which can impact outcomes.
Data kept by TRAC-Syracuse University shows that of the 1.2 million immigration cases it has tracked in Texas since 1998, 835,000 ended with a removal order. Of those cases, 711,000 involved migrants without legal representation.
"It can be hard for people who have suffered a lot of trauma coming north to articulate why they're entitled to asylum," Hunker said. "I really don't think it's going to save significant time and the cost is ... non-citizens that really are entitled to apply for asylum are going to be prevented from applying for asylum."
This new regulation is not in effect, yet. There's a 30-day public comment period that runs until June 12.
Who qualifies for asylum?
The right to seek asylum was first enshrined by the United Nations General Assembly in 1948. It was later written into federal law by the United States in the Refugee Act of 1980.
Not everyone who wants to flee their home country is eligible for asylum under U.S. law. In fact, there are only five categories for asylum seekers. A person has to fear persecution due to:
- Race
- Religion
- Nationality
- Membership in a particular social group
- Political opinion
Learn more about the asylum process below: