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Biden administration announces asylum system overhaul: What you need to know

The Biden administration on Thursday announced the final version of its long-awaited overhaul of asylum in the United States, aimed at speeding up border processing and reducing backlogs in immigration courts across the country.

Fixing asylum, a process that can drag on for years, was one of President Biden’s campaign promises. The overhaul represents the most significant change to the country’s immigration system since he took office.

The new policy will go into effect in late May or early June, 60 days after it was published in the Federal Register, officials said Wednesday. The change will not affect most asylum seekers as long as a pandemic-related rule limiting border access remains in place. But the new system will likely be in place once that rule is lifted and the spike in asylum claims begins.

“The current asylum processing system at our borders is long overdue for repair,” Department of Homeland Security Secretary Alejandro N. Mayorkas said in a press release. “Through this rule, we are building a more functional and sensible asylum system to ensure that those eligible will receive protection faster, while those who are not will be quickly deported.”

Asylum seekers will now have their claims heard by a U.S. Citizenship and Immigration Services asylum officer in several months, instead of waiting years for a final decision from a judge. immigration.

The Departments of Homeland Security and Justice released a draft proposal in August. After reading 5,000 public comments on the draft, officials said they made some changes but maintained the general framework of the proposal. The officials – from U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review, which oversees immigration courts – spoke to reporters on the condition that they not be named .

Under the rule, anyone who was denied protection by an asylum officer could request a review from citizenship and immigration services within seven days. If denied, the person could request that an immigration judge reconsider their application and later take their case to the Immigration Appeals Board and the federal circuit courts. Once all offers have been exhausted, or if none are pursued, the person would be subject to deportation. The rule does not apply to unaccompanied children arriving without a parent.

Proponents say the policy improves what has long been seen as a scary process for traumatized migrants. Instead of first having to recount their worst experiences in an adversarial court as they defend themselves against deportation, migrants will now be able to plead their case in an asylum office.

But many advocates worry the changes will weaken constitutional due process rights for asylum seekers by essentially expanding the so-called expedited removal process, a mechanism used to quickly turn back apprehended immigrants at the border.

Richard Caldarone, who handles litigation at the Tahirih Justice Center, a national nonprofit serving immigrants who have fled gender-based violence, said the new process serves no meaningful humanitarian purpose because it does not provide enough time to trauma survivors to gather evidence and recover.

“Trauma survivors will not be able to tell a government official what happened to them 72 hours after they arrived in a safe place,” he said. “Given the emphasis that DHS has placed on speed for asylum seekers, it will be like the old process – designed in a way that will consistently fail to get people’s best asylum claims.”

Families seeking asylum travel to the United States from Matamoros, Mexico.

(Carolyn Cole/Los Angeles Times)

A better system, Caldarone said, would give people a year before their asylum hearing to prepare and then quickly provide a decision on whether they could stay or be deported. This would allow people to heal from trauma and lead to fewer calls, he argued.

The backlog of pending immigration court cases has exploded in recent months, reaching nearly 1.6 million in December, according to the Clearinghouse for access to transactional records, a nonpartisan data research center at Syracuse University. It has tripled since 2016.

Under the new system, asylum officers will grant decisions within approximately 90 days. Appeals to immigration court will generally take an additional 90 days, officials said.

In his first year in office, Biden took about 300 executive actions on immigration, nearly a third of them to reverse Trump-era policies, according to an analysis by the Migration Policy Institutea Washington-based think tank.

One area he hasn’t changed: For the past two years, the border has been closed to the vast majority of asylum seekers under a restrictive pandemic-era policy initiated by the former President Trump. The policy, known as Title 42, invokes a 1944 public health law to quickly deport migrants trying to enter the United States to curb the spread of the coronavirus.

Of the more than 1.7 million people detained by U.S. Customs and Border Protection at the southwest border in fiscal year 2021, 61% were deported under Title 42, according to data from the agency.

Experts say these rapid deportations under Title 42 have led to an increase in unauthorized crossings into the United States by people who would otherwise have sought asylum at an official port of entry. The rapid removals to Mexico have also led to repeated border crossing attempts by migrants, which has inflated the number of Customs and Border Protection apprehensions.

Earlier this month, the US Centers for Disease Control and Prevention officially ended this policy for children traveling without a parent, saying their deportation “is not justified to protect public health”. Immigrant advocates and Democratic congressional leaders have argued that the policy is illegal and have increased calls in recent weeks to also end its application to adults traveling alone and parents traveling with their children.

Traffic at the San Ysidro border post

Traffic at the San Ysidro border post in Tijuana.

(Alejandro Tamayo/San Diego Union-Tribune)

But asylum seekers won’t see any substantial change, even with the updates in place, until the CDC decides to end Title 42 entirely. Over the past few weeks, as the response to the pandemic changed in the United States, federal officials began to plan for the possible end of the policy.

The asylum overhaul will be implemented in phases, though officials said they have yet to decide where to roll out the initial program and whether to target a specific population, such as single adults or families. .

On a call with reporters last week, Mayorkas said the phased implementation of the new asylum system is designed to avoid straining citizenship and immigration services. The agency tipped into bankruptcy, he added, and was “virtually dismantled” under the Trump administration, whose approach to immigration deterred many immigrants from filing applications before the pandemic further reduce the agency’s workload.

“We must be mindful of the resource constraints of the Asylum Division of U.S. Citizenship and Immigration Services as we rebuild this agency,” he said, noting that the agency is nearly funded entirely by application fees.

Under the proposed rule, the agency estimated it would need to hire 800 new staff and spend $180 million to be able to handle 75,000 cases a year.

Prior to the pandemic, migrants encountered near the border were screened by the agency’s asylum officers for fear of persecution. Those who passed the initial review would have their cases transferred to immigration courts, where a judge would decide whether they qualified for asylum or other protection and could remain in the United States.

In the meantime, they have been detained or released pending a final hearing. Immigrants facing deportation do not have the same right to a state-funded lawyer as people in criminal proceedings, and most are self-represented.

To qualify for asylum, immigrants must show that they fear persecution in their country of origin based on one of five protected categories: political opinion, race, religion, nationality or group membership. particular social.

Officials hope the new asylum policy will curb unauthorized migration.

“The possibility of remaining in the United States for years awaiting an initial decision may motivate unauthorized border crossings by persons who otherwise would not have sought to enter the United States and who do not have no meritorious claim for protection,” the proposed rule reads.

The aim is also to reduce stress for those who ultimately receive asylum or other immigration protections, according to the rule, as currently, “they are left in limbo as to whether they could still being fired and unable to apply for qualified family members, some of whom are still at risk of injury.

Los Angeles Times

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