WASHINGTON — The Biden administration on Thursday announced steps to expedite asylum applications at the U.S.-Mexico border in a bid to resolve a years-long backlog, but policy advocates fear the streamlined process could prevent applicants asylum seekers to obtain legal representation if their case is refused.
“If someone is not approved in the first instance, they will have to go through a fairly quick process to appeal,” said Jennifer Ibañez Whitlock, immigration attorney and policy advisor for the American Immigration Lawyers Association, in an interview. . . “I strongly believe this is going to affect people’s ability to find a lawyer.”
The Departments of Justice and Homeland Security issued a rule allowing U.S. Citizenship and Immigration officials, rather than immigration judges, to make decisions on migrant border applications that they cannot return to their country of origin for fear of being tortured or persecuted. This rule would not apply to unaccompanied children.
If USCIS officials determine that a person cannot apply for asylum, that person will face deportation and the case will be processed within 90 days by an immigration judge.
But if the person seeking asylum can establish a credible fear of persecution, they get an appointment with an asylum officer 21 to 45 days after the decision is made. The officer then has 60 days after the interview to determine whether to grant asylum.
“Through this rule, we are building a more functional and sensible asylum system to ensure that those who are eligible will receive protection faster, while those who are not eligible will be expelled quickly,” Secretary Alejandro Mayorkas said in a statement. a statement. “We will process applications for asylum or other forms of humanitarian protection quickly and efficiently while ensuring due process.”
That decision currently rests with the roughly 500 immigration judges, and those backlogs can take years – but officials say this new rule would reduce that time to months. The current backlog of immigration cases is nearly 1.5 million, according to Syracuse University tracking.
“This will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and allow immigration judges to issue removal orders where appropriate,” said Attorney General Merrick B. Garland in a statement announcing the rule.
An asylum case before a judge can take two to three years, Whitlock said. If a migrant is granted asylum, they are allowed to remain in the United States and obtain permanent residence one year after this decision.
She added that USCIS has a high turnover rate of asylum officers, and she is concerned that staff may not be able to process incoming cases when they have their own backlogs.
USCIS has a backlog of 9.5 million unattended applications, according to the Migration Policy Institute.
Representative Andy Biggs, a Republican from Arizona, asked Mayorkas about staffing levels last year. The agency said in fiscal year 2021 it had 769 asylum officers, with a goal of reaching 785.
“I have a feeling that people under this rule won’t be represented,” Whitlock said.
A 2016 study by the American Immigration Council found that only 37% of immigrants find legal representation in deportation cases, and immigrants in detention centers were less likely to obtain legal representation.
The study also found that representation rates varied by nationality. Mexican immigrants have the highest detention rates, at 78%, and the lowest legal representation at 21%, compared to Chinese immigrants who had the lowest detention rate at 4% and the lowest legal representation rate the highest at 92%.
According to the study, immigrants who were detained, but had a lawyer, were “nearly 11 times more likely to seek assistance such as asylum than those who were unrepresented (32% with a lawyer versus 3% without a lawyer).
Whitlock said expecting someone seeking asylum to get their own legal representation, particularly if their asylum claim is denied, “doesn’t set people up for success.”
“It will allow you to make quick decisions,” she said. “But if you try to identify people who should have protection under our laws, I think you’re going to end up sending a lot of asylum seekers back to hurt them.”
Another sticking point is the language barrier, she said. Some of the migrants seeking asylum are Haitians. Those migrants who have been denied asylum should find an interpreter or a lawyer fluent in Haitian Creole.
Another complication is Title 42, which allows the United States to deport migrants seeking asylum during a time of health crisis such as the coronavirus pandemic. The Centers for Disease Control and Prevention, which is reauthorizing Title 42, has a March 30 deadline to determine whether to continue with the policy.
Title 42 is a Trump-era immigration policy that the Biden administration scrapped, but a Texas district court ruled the White House must keep the policy in place.