The Joe Biden administration has recently published a new policy introducing expedited proceedings for asylum seekers crossing the US-Mexican border. The policy is due to enter into force on May 31, 2022. It is adopted in the form of an “interim final rule” meaning that it may be amended before entering into force. However, the significance of the proposed changes is such that it requires the immediate analysis. The key provisions of the policy are as follows.
A. Updates to Credible Fear Interview Regulations
The standard of proof for determining credible fear will revert back to that of the pre-Trump era, and thus, be less stringent.
Asylum seekers who pass credible fear interview will not be required to file a Form I-589, Application for Asylum and for Withholding of Removal, and a record of the positive credible fear determination will start the clock for the purposes of the employment authorization.
B. An Asylum Case May Be Determined in Full during an Asylum Merits Interview
An Asylum Merits Interview will follow a credible fear interview and will be conducted by USCIS. A USCIS officer may grant asylum directly at the Asylum Merits Interview, with no further court proceedings needed.
An asylum seeker must present his/her full asylum case with all evidence at the Asylum Merits Interview.
If an alien who has dependents (spouse, children) does not pass an Asylum Merits Interview, an asylum officer must determine whether there is a significant possibility that the dependents have an independent basis for protection under the U.S. laws before issuing a denial.
Only if neither the principal applicant, nor his dependents were determined to qualify for protection under the U.S. laws, the case will be referred to an Immigration Judge for adjudication in removal proceedings.
C. Removal Proceedings Will Look Different: Status Conference Added; Merits Hearing May be Waived in Certain Circumstances
In addition to a master calendar hearing and a merits hearing, the policy adds a status conference to the removal proceedings timeline. At a status conference, an asylum seeker must indicate whether she intends to testify, present any witnesses, or offer additional documentation. A status conference will also likely narrow the issues to be adjudicated at the merits hearing.
An Immigration Judge may forgo a merits hearing and decide a case on the documentary record in certain instances (for example, if Department of Homeland Security (DHS) waives cross-examination and does not intend to present testimony or produce evidence).
D. An Expedited Timeline
Asylum Merits Interview must be scheduled within 21 to 45 days as of the date that the positive credible fear determination is served on the asylum seeker.
A master calendar hearing must be scheduled 30 to 35 days after the service of the Notice to Appear and a negative Asylum Merits Interview determination.
A status conference will be held 30 to 35 days as of the master calendar hearing.
A merits hearing will be held 60 days after the master calendar hearing.
Time extensions are possible in a very limited fashion.
E. Key Takeaways
The newly adopted fast-track asylum proceedings will create more certainty for asylum seekers eliminating years of wait for court hearings.
Simultaneously, asylum seekers will have considerably less time to prepare their case, which may be fully adjudicated at the Asylum Merits Interview, and evidence thereto.
The discussed policy has the status of an “interim final rule” meaning that the agencies may alter it if warranted by public comments. Public comments may be submitted by May 31, 2022. Hence, it is possible that the policy will be further amended and/or its effective date postponed.
Disclaimer: The information provided in this article does not and is not intended to constitute legal advice. Furthermore, this article is not guaranteed to be complete or remain up-to-date with the passage of time, nor intended to create – and receipt of it does not constitute – a lawyer-client relationship. Anyone viewing this information should not act upon it without consulting a licensed attorney.
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