Biden prepares asylum overhaul at border, but court challenges loom
The Washington Post May 28, 2022
The Biden administration next week plans to begin using an overhauled system for screening migrants seeking humanitarian protection along the U.S. southern border, relying more on asylum officers instead of immigration judges to help determine who gets to stay in the country.
Administration officials say the changes are expected to reduce court backlogs and make it easier for authorities to deport those who don't qualify for protection. The new system is scheduled to start Tuesday at two immigration detention centers in Texas, and officers are expected to process several hundred cases per month during the initial phase, according to the Department of Homeland Security.
Officials describe the "Asylum Officer Rule" as their most significant border policy initiative to date, with the ability to streamline a system with a backlog of nearly 400,000 pending cases. Officials expect the new system will work faster without sacrificing fairness, because claims rejected by asylum officers will be reviewed by immigration judges as a safeguard.
"Individuals who qualify for asylum will receive protection more swiftly, and those who are not eligible will be promptly removed rather than remaining in the U.S. for years while their cases are pending," Homeland Security Secretary Alejandro Mayorkas said in a statement. "We are delivering justice quickly, while also ensuring due process."
Opponents of the overhaul policy are trying to block it in Congress and federal courts after victories against President Joe Biden's other border policy initiatives.
On Thursday, Republican senators fell a few votes short on a resolution seeking to stop the asylum rule from taking effect. Earlier in the week, Texas Attorney General Ken Paxton, R, filed for a preliminary injunction in U.S. District Court, alleging the policy will accelerate illegal immigration.
"Federal law requires genuine asylum and parole claims to be carefully managed and scrutinized by an immigration judge, not a bureaucrat rubber-stamping patently false claims," said Paxton, whose lawsuit is backed by America First Legal, the advocacy group founded by Stephen Miller, a former adviser to President Donald Trump.
The lawsuit puts Biden's border policies once more in the hands of U.S. District Judge Matthew Kacsmaryk, a Trump appointee who sided against the administration last year when he ordered the reinstatement of the "Remain in Mexico" policy after a separate lawsuit filed by Paxton. That case is now pending before the Supreme Court.
Biden's new policy will give asylum officers working for U.S. Citizenship and Immigration Services the authority to grant U.S. humanitarian protection but not to deny it - a point the president's opponents have assailed. Applicants who are rejected during screening by an asylum officer will have their cases reviewed by an immigration judge and will retain the right of appeal.
Administration officials say those changes can still ease the burden on immigration judges and resolve asylum claims faster than the current system, because rejected applications will reach the courts at a more advanced stage.
"By establishing a process for the efficient and thorough review of asylum claims, the new rule will help reduce existing immigration court backlogs and will shorten the process to several months," the DHS said.
Biden's other recent border policy initiatives have hit snags in federal courts. Last week, the administration's plan to lift pandemic-era Title 42 border restrictions was blocked by a Trump-appointed District Court judge in Louisiana, leaving Biden locked into the policy for the foreseeable future.
U.S. authorities have made record numbers of immigration arrests along the Mexican border since Biden took office, including more than 234,000 detentions last month. About half of those taken into custody are quickly "expelled" from the United States under the Title 42 restrictions, implemented in March 2020 to curb the spread of the coronavirus.
U.S. District Judge Robert R. Summerhays said in his ruling that the administration did not follow federal rulemaking procedures when it decided to lift the Title 42 restrictions, ordering the government to leave them in place until the case was decided.
Advocates for immigrant have long opposed the Title 42 order, describing it as a Trump-era enforcement tool enacted under the guise of public health. Biden largely left the order in place after he took office, defending its importance as a public health measure.
As infections declined and other pandemic restrictions eased, the Centers for Disease Control and Prevention announced April 1 the Title 42 order was no longer needed, setting May 23 as its expiration date. Republicans and several Democrats had urged Biden to extend the Title 42 order, warning that its removal would put even greater strains on border authorities and the U.S. immigration system.
Summerhays's ruling focused primarily on the migration-related implications of lifting Title 42, not the public health rationale.
The administration "spent over a year defending it as public health policy, but as soon as they tried to roll it back, it became apparent that the original intent of Title 42 as border control policy was always the real purpose," said Andrea Flores, a former immigration adviser to Biden who left the White House last fall.
Biden administration officials were preparing for an even larger migration influx after the restrictions were lifted, so the ruling eased the risk of another crisis similar to last year's mass crossing of Haitian migrants that overwhelmed authorities in Del Rio, Texas. But the decision has left Biden officials locked into a policy they say has driven up the rate of repeated illegal crossings.
That has left the administration in the unusual position of blaming Republicans for preventing them from implementing more-rigorous enforcement measures.
"Because individuals subject to Title 42 are expelled without immigration consequences, many make repeated attempts to enter the United States unlawfully," DHS spokesman Eduardo Maia Silva said in a statement.
"Only when the Title 42 public health order is no longer in place can the Department most effectively increase immigration enforcement actions to administer escalating consequences for unlawful entry," he said.
The Biden administration has appealed Summerhays's ruling. But immigrant advocates say they want to see the White House do more. "If the White House truly wants to end Title 42, and is not just posturing, then the administration will seek an immediate stay of the Louisiana injunction," American Civil Liberties Union attorney Lee Gelernt said in an interview.
Gelernt said the administration could also move to comply with the judge's order by quickly seeking public input on the measure, which Summerhays said the administration neglected to do.
Andrew Selee, president of the nonpartisan Migration Policy Institute in Washington, said Summerhays's ruling is a "gift," in a policymaking sense, because it buys the administration more time to focus on its own border initiatives, especially the asylum overhaul.
"It's a gift if they want to use it as way to build a new border management system as quickly as possible," he said. "But it's a curse if they use it as excuse to not do anything different."
The new asylum screening procedures will apply to single adults as well as family groups who are facing "expedited" deportation proceedings and applying for protection, according to the DHS.
U.S. Immigration and Customs Enforcement officials will decide on a case-by-case basis whether to refer the applicant to an asylum officer for what the administration describes as a "non-adversarial" screening interview.
Only applicants who indicate an intent to reside in Boston, Los Angeles, Miami, New York, Newark or San Francisco will be eligible for the asylum officer screenings during the initial phase, the DHS said.
If the asylum officer decides the applicant is not eligible for asylum or another form of U.S. protection and an immigration judge concurs with the decision after an "independent" assessment, the judge will issue a deportation order "and the individual will be expeditiously removed from the United States," according to the department.
Under Biden, deportations and immigration arrests in the interior of the United States - away from border areas - have slumped to their lowest levels in decades, ICE statistics show.
The Washington Post's Maria Sacchetti contributed to this report.