Simply put, the new interim final rule (IFR) on asylum raises significant due process concerns through its proposed accelerated timeline. Under the IFR, an asylum applicant could go from credible fear interview to asylum merits interview before an asylum officer within a month, and if unsuccessful, have their final merits hearing before an immigration judge less than five months later. This rapid timeline also includes deadlines for submitting evidence that are as short as 14 days before an asylum merits interview. To compound this timeline, asylum seekers are barred from rescheduling the interview without demonstrating exigent circumstances, and the underlying credible fear application will serve as the asylum application.
Faster isn’t always better. This timeline significantly hinders access to counsel and due process for asylum seekers. In the vast majority of asylum cases, adequately preparing a client for an asylum interview takes far more than two weeks. AILA’s Asylum and Refugee Liaison Committee, composed of immigration attorneys well versed in asylum cases estimated that “representing an asylum seeker in immigration court conservatively takes between 40-80 hours of work, with an estimated 35 hours of face-to-face communication with the client.” This estimate does not include preparing an affirmative asylum case before USCIS. Key to due process is access to counsel and the opportunity to be heard in a meaningful manner. A breakneck prescribed timeframe comes with limited opportunities for continuances, stating that they “shall not exceed 10 days,” and after only a month of continuances, a heightened standard to justify further continuances applies.
As someone who is an immigration attorney by training and works with AILA’s more than 16,000 members, I can tell you that this his IFR, which includes language about the opportunity for asylum seekers to seek continuances in order to find counsel, disregards the amount of time it takes to feasibly secure counsel and to prepare a case. Studies of past initiatives to fast-track immigration cases found that “shorter continuances systematically prevent pro se respondents from finding counsel.” In short, the IFR hinders due process both in the access to securing counsel and in the practicalities of preparing an asylum case once counsel is secured.
This timeline was not in the original proposed rule that DHS solicited comments for (read AILA’s joint comment on the initial notice of proposed rulemaking here). AILA and the American Immigration Council will again submit a joint comment addressing these significant due process concerns. I will note that there are also changes made in the IFR that are positive, including a return to the prior standard of review for initial fear screenings and improvements made on how the Departments handle the treatment of dependent spouses and children.
However, the future of the IFR remains uncertain, as it faces litigation in both Texas and Louisiana. In these two separate cases before Trump-appointed judges, Plaintiff states contest the legality of the IFR under the Administrative Procedure Act and filed a preliminary injunction to stop the rule. In both cases, the government filed a motion to transfer for lack of subject matter jurisdiction, arguing that the District Court for the District of Columbia was the sole federal court with jurisdiction over this case. On May 18th, the judge in the Louisiana case denied the government’s motion to transfer, and calendared discoveries and briefings for the end of June prior to the ruling on the preliminary injunction.
The timeline of the litigation means the IFR is still expected to go into effect at the end of May – although it may then be halted. While DHS has communicated that the roll out is expected to be small and phased, immigration attorneys could start to see this rapid timeframe implemented for asylum seekers beginning in June, and then have it stalled in the courts later this summer.
Our laws require that we give those seeking protection a meaningful chance to claim asylum. A rapid timeframe that ignores the challenges facing those seeking counsel, and the sheer amount of time that both client and attorney must take to bring forward a substantive claim, will undermine due process. The Biden administration can and must do better.
***
Looking for more information about this rule and the current status of asylum processing? See below for three resources:
DHS and DOJ Interim Final Rule on Asylum Processing
Follow Litigation over Asylum Processing Interim Final Rule
And stay tuned for AILA’s online course on asylum, slated for distribution in the fall!