On August 18, 2021, the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”), keeping in line with their goal of a fair, orderly, and humane immigration system, published a Notice of Proposed Rulemaking (“NPRM”), amending the processing of protection claims. The proposed rule would allow individuals who receive a positive credible fear determination to be further interviewed by U.S. Citizenship and Immigration Services (“USCIS”) asylum officers, who will hear and decide applications for asylum, withholding of removal, and Convention Against Torture (“CAT”). Normally, these cases are assigned to the Immigration judges within the DOJ’s Executive Office of Immigration Review (“EOIR”).

The Proposed Rule

Under the proposed rule, any individual who establishes a credible fear of removal will be referred to an asylum officer for further hearing on the protection claims. The asylum officer will now be authorized to adjudicate in the first instance requests for asylum as well as eligibility for withholding of removal, or withholding or deferral of removal under the CAT claim. If the asylum officers deny the case, the non-citizen may request a de novo administrative review by the Immigration Judge, which can be further appealed to the Board of Immigration Appeals.

A revision is proposed to the criteria applicable to grants of the parole officer before the credible fear determination. Here, the DHS officer may grant parole when the detention of the non-citizen is either unavailable or impracticable, in addition to the existing criteria involving medical emergencies and law enforcement objectives.

Who Does the Rule Apply To

The proposed rule applies to non-citizens who are placed in expedited order of removal process on or after the effective date of the final rule. This rule does not apply to non-citizens already residing in the United States.

Better and More Efficient System to Adjudicate Claims      

“Today marks a step forward in our effort to make the asylum process fairer and expeditious,” said Attorney General Merrick Garland. “This rule will both reduce the caseload in our immigration courts and protect the rights of those fleeing persecution and violence.”

“These proposed changes will significantly improve the 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 Secretary Alejandro N. Mayorkas. “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 equality.”

With the increase in the number of immigrants entering the country and the looming backlog of cases that need to be adjudicated before the EOIR, the current system for hearing and adjudication of asylum claims desperately needs repair. The number of cases has been steadily increasing for more than a decade. The proposed rule aims at replacing the current system, bringing in place a more efficient system to adjudicate protection claims fairly and expeditiously. The comments period for this proposed rule will end on October 19, 2021.