The Biden administration is planning to dramatically reshape how asylum-seekers are processed in order to prevent an increase in the backlog of immigration court cases, potentially cutting the waiting period for some applicants by years, according to government documents obtained by BuzzFeed News.
The policy, which has been months in the making and was first alluded to by White House transition officials in December, has yet to be finalized. However, it would shift the decision-making power for whether certain immigrants encountered at the border are granted asylum from an immigration judge to an asylum officer. It would not, however, apply to unaccompanied children (who have a separate process) or to those who are already in court proceedings in the US.
Depending on how it is implemented, the plan could represent President Joe Biden’s most consequential immigration policy to date and fundamentally change the dynamics at the southern border by preventing asylum cases from taking years to complete in court. It’s also a departure from the Trump administration, which sought to block asylum protections at the border through several initiatives, some of which were ultimately overruled in federal court.
BuzzFeed News has obtained a draft version of the policy and a draft communications plan for the rollout. Key questions remain about its scope, funding, and how quickly it will be implemented. Senior officials in the Department of Homeland Security want to issue the plan in June, according to government documents, but the timing and details could change.
DHS declined to comment on the plan.
The draft policy begins by arguing that a major change in the asylum system is needed.
“If there is any area of agreement on immigration, it is that the system for dealing with asylum claims at the border is 'overwhelmed' and in desperate need of repair. A system that takes years to get to a result is not a working system,” the draft policy reads. “It is unfair to those who need protection, and it encourages abuse by those undeserving of protection and the smugglers who exploit dysfunction for profit. The aim of this rule is to begin urgently replacing a broken system with a more efficient one, adjudicating asylum claims expeditiously without [compromising] fairness.”
Administration officials have drafted the policy in a way that it could take effect quickly, mimicking how Trump often issued changes to border and immigration policies. That approach, however, faced countless legal challenges, as immigrant advocates claimed it violated federal law and was too rushed.
With that in mind, Biden may opt for a more traditional route, through a “notice of proposed rulemaking,” which would add months to the process and allow for comments from the public to be considered.
The Biden administration has been focused on unwinding years of restrictions on immigration implemented under Trump. At the same time, DHS officials have spent much of the year contending with rising numbers of unaccompanied children and immigrants arriving at the southern border. More than 172,000 immigrants crossed over from Mexico in March, the highest level in at least 15 years, though many of them were quickly turned back under Title 42, a rarely used public health law invoked by Trump.
Currently, immigrants encountered at or near the border who are placed into an “expedited” removal process are screened by officers from US Citizenship and Immigration Services on whether they can continue with their asylum claims. If they pass that test — called a credible fear screening — their case moves to the immigration courts, where they can attempt to apply for asylum in front of a judge.
But the backlog of more than 1 million cases, many of which are asylum applications, has overwhelmed the immigration court system. The median completion time for a case is now nearly four years for people who are not in custody.
Under the draft version of Biden’s plan, if the immigrants pass the credible fear screening, they would have their asylum cases heard by an asylum officer instead of an immigration judge. They would also be considered for other forms of protection. An immigration judge could review the asylum officer’s decision if an immigrant is ultimately denied, and a third appeal would also be possible. If the decision remains after all those avenues are exhausted, or an appeal is not pursued, the immigrant would be subject to deportation.
The logistics of how to carry out the plan, including how it will be funded, are still being worked out. It is unclear how widespread it could be implemented on the border. DHS officials have estimated that officers could end up adjudicating upward of 300,000 cases a year.
In preparation for the rollout, DHS officials created a communications plan for the policy, a draft of which was also viewed by BuzzFeed News.
DHS officials believe the new system would “reduce the processing time” and simplify the adjudication process for people apprehended at or near the border.
Internally, administration officials have discussed potential issues with the plan, including that it essentially turns asylum officers into immigration judges. The range of litigation experience among asylum officers also varies, which brings up potential issues with due process.
Asylum officers already decide cases for asylum-seekers who are in the US and apply from within the country, but that system has also been plagued with a massive backlog. Only certain immigrants who have been in the US for less than a year and are not already in immigration court can apply for asylum through this process, called affirmative asylum. It’s unclear what Biden’s plan would do to that backlog.
DHS Secretary Alejandro Mayorkas appeared to allude to the new system in a statement in March when the administration was struggling to deal with the growing number of unaccompanied children in federal custody.
“For years, the asylum system has been badly in need of reengineering. In addition to improving the process by which unaccompanied children are placed with family or sponsors, we will be issuing a new regulation shortly and taking other measures to implement the long-needed systemic reforms,” he said. “We will shorten from years to months the time it takes to adjudicate an asylum claim while ensuring procedural safeguards and enhancing access to counsel.”
Also in March, Mayorkas told congressional officials that DHS was exploring the option of having asylum officers consider more cases in the first instance.
If implemented immediately, it could also provide a way for the Biden administration to move away from a policy instituted under Trump that allows border agents to turn around most people arriving at the border, including those seeking asylum. The so-called Title 42 policy — which Trump invoked citing efforts to contain the coronavirus — has come under heavy scrutiny from immigration advocates who believe it is illegal and has placed asylum-seekers in danger.
The ACLU has been in negotiations with the US for several weeks over blocking the use of Title 42 against families. The two sides recently agreed to a delay in any federal court judgment to allow for continued discussion.
The ACLU represents six families who fled their countries and were seeking safety in the US. Prior to Title 42, the group contends, the families would have had a chance to seek asylum at the border. Instead, immigrants and families at the border must “affirmatively” state they are fearful of being tortured in their home country to get a chance at a screening.