Biden Rule Would Return Refugees to Harm, Increase Inefficiencies

Today the Biden administration unveiled a new rule that would block many people seeking asylum from ever receiving a full and fair hearing on their claims. The proposed rule would allow asylum officers to make complicated legal determinations at the initial credible fear screening stage and swiftly preclude protection in cases where they suspect certain statutory bars may be applicable. While the administration touts this proposal as a means to “secure” the border, the rule would make no one safer. In practice it would amount to a due process disaster, accelerating wrongful deportations of refugees to countries where they face grave harm.

“The administration’s latest proposal marks yet another shameful betrayal of President Biden’s promises in pursuit of short-term political gain,” said Blaine Bookey, Legal Director of the Center for Gender & Refugee Studies (CGRS). “This rule would imperil the lives of vulnerable people fleeing persecution, while doing nothing to address the real humanitarian and operational challenges at our southern border. We have worked with many asylum seekers who would have been shut out by the new rule. Take the case of our client Aida. Her abuser exploited his connections with the Salvadoran police to intimidate her, leading to the issuance of trumped up criminal charges and an Interpol Red Notice. With the help of an attorney, she was able to retain an expert witness, have the Interpol notice voided, and ultimately win her asylum case. But under the new rule, Aida could have been barred from asylum before even having the opportunity to consult with a lawyer.”

The credible fear screening interview was designed to ensure that our government does not illegally deport people who have a chance of qualifying for asylum protection. People seeking asylum are screened within days of their arrival, often while held in detention and almost always alone, without legal representation, and exhausted and traumatized from their journey to the U.S. border. There is hardly time for an applicant to prepare the extensive evidence and sophisticated legal arguments required in a full asylum hearing, including any arguments regarding the applicability of statutory bars. For that reason, the credible fear interview was conceived as a low threshold screening, with those more complicated legal questions reserved for a full hearing. The UN Refugee Agency has advised governments against considering statutory bars in initial screenings given the “grave consequences” that could befall an applicant prematurely barred from protection.

While the current credible fear process is deeply flawed, the Biden administration’s proposed rule would only compound due process inadequacies and increase the likelihood of wrongful deportations. It would likely increase the risk of racial profiling during the process as well, allowing asylum officers seemingly unfettered discretion to apply the bars to any individual they perceive to be a “security threat.” The proposed rule would also make the entire credible fear process less efficient, exacerbating operational challenges at the southern border. As noted by the administration itself in 2022, applying statutory bars during credible fear interviews “[makes] these screenings less efficient” and defies Congress’ intent that the process be “truly expeditious.” In its proposed rule the administration is now - bafflingly - asserting the opposite to be true. 

The administration’s cruel and exclusionary approach is completely at odds with what communities in the United States want - a fair asylum process that allows refugees to find safety. We urge the administration to rescind this proposed rule and instead adopt humane and pragmatic solutions that uphold the rights and dignity of people seeking asylum.