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Biden Issued A New Policy That Would Reshape How Asylum-Seekers Are Processed At The Border

The new action aims to prevent an increase in the backlog of immigration court cases by having asylum officers handle cases initially instead of judges.

Last updated on August 18, 2021, at 3:55 p.m. ET

Posted on August 18, 2021, at 9:27 a.m. ET

Nick Ut / Getty Images

The Biden administration issued a policy Wednesday to dramatically reshape how asylum-seekers are processed at the border. The new action aims to prevent an increase in the backlog of immigration court cases by having asylum officers handle cases initially instead of judges.

The policy has been months in the making and was first alluded to by White House transition officials in December. BuzzFeed News first reported on a draft of the plan in May.

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.

“These proposed changes will significantly improve DHS’s and DOJ’s ability to more promptly and efficiently consider the asylum claims of individuals encountered at or near the border, while ensuring fundamental fairness,” said Department of Homeland Security Secretary Alejandro N. Mayorkas in a statement sent to the media. “Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed. We are building an immigration system that is designed to ensure due process, respect human dignity, and promote equity.”

Depending on how it is implemented, the plan could fundamentally change the dynamics at the southern border by preventing asylum cases from taking years to complete in court. Key decisions on the parameters of the plan still remain as the Biden administration awaits comments from the public on the policy for the next 60 days. The plan, issued as a “notice of proposed rulemaking,” will likely not be implemented for months. The administration had initially drafted the policy as an “interim final rule” to take place immediately but ditched that effort.

US Citizenship and Immigration Services, the agency that oversees asylum officers, needs to hire 2000 new positions — including 1,000 asylum officers — to take on 150,000 asylum claims a year, according to a DHS spokesperson. USCIS plans to increase staffing to handle the work.

The Biden administration has been focused on unwinding years of restrictions on immigration implemented under Donald Trump. At the same time, officials have been increasingly concerned about the high volumes of immigrants crossing the border and the issues facing the capacity to process them as it contends with the rapid spread of the Delta variant of the coronavirus in the US.

A senior DHS official, David Shahoulian, told a federal court judge this month that the Department of Homeland Security was "likely to have encountered about 210,000 individuals in July" — the highest monthly number since 2000. "July also likely included a record number of unaccompanied child encounters ... and the second-highest number of family unit encounters,” Shahoulian added.

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.

Under the 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 ability to stay in the United States for years waiting for an initial decision may motivate unauthorized border crossings by individuals who otherwise would not have sought to enter the United States and who lack a meritorious protection claim,” the policy reads. “This delay creates additional stress for those ultimately determined to merit asylum and other forms of humanitarian protection, as they are left in limbo as to whether they might still be removed and unable to petition for qualified family members, some of whom may still be at risk of harm.”

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.”


A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.