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#ImmigrationWatch2017 | Topic #5: Asylum | Will Changes to Asylum Guidelines Make Seeking Asylum in U.S. Harder?


President Trump's pledge to build a wall at the U.S./ Mexico border is not the only action his administration is planning to stem the tide of illegal immigration from Mexico. President Trump is also tightening up the guidelines related to seeking asylum at the border. Last month, USCIS released a new lesson plan to Asylum Officers regarding the changes.

How does a person who is caught trying to cross the border apply for asylum?

When a person attempts to cross into the U.S. from Mexico illegally and is are caught, before he or she is quickly deported (known as "expedited removal"), the Immigration and Nationality Act (INA) requires that the officer ask the individual if he or she is afraid of returning home. If the individual responds in the affirmative, the officer is then required to conduct a "credible fear" interview. At the conclusion of the interview, if the asylum officer determines that there is a significant possibility that the individual can establish eligibility for asylum, then that person is entitled to apply for asylum and remain in the Untied States until a decision is made on the merits of the asylum application.

What is the purpose of the credible fear interview?

As explained by the Department of Justice (DOJ) when issuing regulations adding Convention Against Torture screening to the credible fear process, the process attempts to "to quickly identify potentially meritorious claims to protection and to resolve frivolous ones with dispatch .... If an alien passes this threshold-screening standard, his or her claim for protection ... will be further examined by an immigration judge in the context of removal proceedings under section 240 of the Act. The screening mechanism also allows for the expeditious review by an immigration judge of a negative screening determination and the quick removal of an alien with no credible claim to protection."

Basically, the credible fear process is a safeguard created by Congress to ensure that bona fide asylum seekers are not summarily deported under the expedited removal process and are allowed to file asylum applications and go through the regular full adjudication process.

How does a person prove that they have a credible fear?

Significant possibility that:

1. Applicant can establish eligibility for asylum, AND;

2. Applicant is credible

--> in light of other relevant factors like country conditions.

Credible fear interviews are conducted within a few days of an individual's apprehension by immigration officials and although you can have an attorney present at the interview, you do not have a right to have an attorney present, and since the applicant is detained during this time, applicants rarely are able to obtain counsel in time for the interview.

As such, credible fear determinations are generally made solely based on the testimony of the individual being interviewed. Credibility is a leading factor in making this determination, although any other evidence that the individual presents to the officer must be taken into consideration. According to the INA, an applicant can establish credible fear based on testimony alone if the testimony is "credible, persuasive and refers to specific facts."

Asylum officers are also required to take into consideration relevant country conditions of the applicant's country of nationality/citizenship.

If you do prove that you have a credible fear and are allowed to apply for asylum, you will be required to submit evidence to corroborate your claim and produce witnesses at trial (if applicable).

What happens to the asylum applicant while he or she waits for the asylum application to be decided?

While awaiting a decision on the asylum application, the applicant can be detained or released into the country on parole, with or without conditions on parole. Currently, there is a massive backlog causing a increasingly long waits for asylum interviews (current backlog can be over 3 years in certain parts of the country). In order to address the fact that it was just too much money to detain all asylum seekers caught at the border, the Obama Administration adopted a policy to parole asylum applicants who passed their credible fear interviews into the United States while they wait for their case to be adjudicated.

This is known as the "catch and release" program and has been widely criticized for encouraging system abuse and more illegal immigration. The "catch and release" program allows Immigration and Customs Enforcement (ICE) to use their discretion to parole applicants into the United States to wait for their court hearing. After 6 months, the applicant can apply for a work permit (now valid for 2 years at a time) and renew the work permit during their waiting period.

How is the system abused?

Asylum Officers who conduct credible fear interviews have a very tough job. They are the gatekeepers to the asylum process. They determine if an individual should be immediately removed from the country, or if the illegal immigrant has a legitimate fear of returning home and can thus remain temporarily in the United States while his or her case is decided. Turning away an individual with a legitimate fear can mean sending a person back to serious harm, even death. As a result, in 2016, 73,000 people (80% of those given credible fear interviews) were determined to have a credible fear and thus were allowed to remain in the United States to have their asylum claims fully adjudicated by an Immigration Judge.

Due to the fact that it can take years before an asylum applicant finally has a full hearing in Immigration Judge due to the ever-increasing backlog in the courts (The 3-year wait for an interview with the asylum officer is independent of the current backlog in the immigration courts.), more and more asylum seekers are being parole into the United States.

Ultimately, a lower number of applicants who pass the credible fear threshold are actually granted asylum, thereby allowing certain applicants to remain in the United States for an extended period of time based on non-meritorious claim. which in turn has caused the tremendous backlog that we are currently experiencing.

Abuse also takes place when applicants who are paroled into the country do not show up for court or commit criminal offenses. Some of this abuse is countered with conditions on parole such as release on bond, use of ankle bracelets and requirements to appear for Order of Supervision appointments every few weeks, months or years.

But how many asylum seekers who pass the credible fear interview are actually given parole?

According to the Harvard Immigration & Refugee Clinical Program, 47% of asylum seekers were given parole in 2015.

What changes have been made?

Here are the changes that are likely to have biggest impact:

1. End to "Catch & Release" - Parole will be used much more sparingly, meaning more people will stay behind bars while they wait for their turn before the immigration court.

- It is important to note that ICE detention facilities are already overcrowded, an important factor in the decision to start the "catch and release" program. Although President Trump's Executive Order calls to build more detention facilities to accommodate the number of individuals detained under the new guidelines, without more funds from Congress, ICE will not have the funding to comply.

- There also needs to be more Asylum Officers and Immigration Judges hired in order to deal with the caseload. Increased funding will also be needed to cover additional salaries, but even with the funding, it can be very difficult to fill these positions due to the strict requirements applicants must meet.

- For example, as of December 31, 2016, out of the 374 Immigration Judge positions allocated by Congress, 78 of the positions were vacant. It takes approximately 3 years to hire an Immigration Judge due to the extensive background check and clearances that a potential Judge must go through.

2. Expands the category of persons who can be considered for expedited removal - Expands who ICE will target for expedited removal to include anyone who is:

  • in U.S. without being admitted or paroled, AND;

  • has not been continuously present in U.S. for past 2-years (i.e., you entered country at least 2 years ago and have not left since)

I will post a blog about expedited removal in the future. Expanding this category will increase the number of persons subject to expedite removal and not given the ability to explore all avenues of relief from removal.

3. Higher standards of proof for credible fear determinations - Previously, an applicant only needed to show a "significant possibility" that he or she could establish eligibility for asylum before the Immigration Judge. The new guidelines require an applicant to show "a substantial and realistic possibility of succeeding," but less than a preponderance of the evidence of successes. The interpretation of "significant possibility" is much more strict than the previous administration. Applicants are likely to have a much tougher time meeting the lower credible fear standard.

What should you do if you or a loved one is picked up by ICE?

Call an experienced immigration attorney immediately if you or a loved one is picked up by ICE. We will do everything that we can to get you bonded out and start on any applications for relief that are available to you!

*Do you have questions about Asylum or Immigration Detention? Contact an experienced immigration attorney at The Shapiro Law Firm, LLC, to find out if we can help.*