Biden’s new asylum rule

Biden has proposed a major change in managing persons seeking asylum. It strikes at a problem I’ve noted several times: a dysfunctional legal system which generates a huge backlog and thus incents people to game the system. Per the Migration Policy Institute:

The immigration court’s caseload stands at an all-time high of more than 1.3 million cases. Nearly half (619,837) are asylum claims. Asylum applicants typically face court dates that are years away.

(The idea behind asylum is that a person has a “credible fear” of persecution or torture if returned to their home country. the backlog is caused in large measure by immigration courts, rather than asylum officers, making the determination over credible fear.)

Under the new policy, asylum seekers found to merit protection will not be kept in limbo for years at a time while awaiting a final status determination. At the same time, those who may not have a strong asylum claim will have less incentive to apply for protection as a means of gaining U.S. entry, as often happens now, since the cases take so long to be decided.

The proposed rule would shift asylum decisions from being made by immigration judges in courtrooms to being adjudicated in interviews with asylum officers specially trained to decide protection claims.

At present, asylum officers decide asylum cases when they arise within the United States, not at the border. The border has been treated differently because asylum applicants are already in removal proceedings for having crossed the border without authorization, and so they enter a separate and much slower “defensive asylum” process before the immigration courts. The proposed rule would assign these cases to asylum officers.

The core idea is based on research and recommendations the Migration Policy Institute made in a 2018 report as a policy solution to make border case management more effective and timely.

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