Comments submitted on proposed rule regarding credible fear screenings

Via Harvard Immigration and Refugee Clinical Program

On October 19th, our Program, in collaboration with the HLS Immigration Project and the Immigration Coalition of the Massachusetts Law Reform Institute, submitted comments on a proposed rule regarding asylum procedures and credible fear screenings. While the proposed rule claims to “streamline” the asylum process, we believe that it would instead undermine asylum seekers’ due process rights and should be withdrawn and/or revised.

Specifically, we have grave concerns about the rule’s elimination of the right to a full hearing in front of an immigration judge. Current law dictates that if an asylum seeker passes their Credible Fear Interview (“CFI”), they should be referred to immigration court for full proceedings; however, under the proposed rule, asylum applications would instead be heard by United States Citizenship and Immigration Services (“USCIS”) officers, with only limited review in court. If the proposed rule is enacted, asylum seekers whose claims are denied by an officer must affirmatively request review by an immigration judge to avoid a final removal order, which would likely have devastating impacts on pro se applicants.

Another troubling impact of the proposed rule is the elimination of asylum seekers’ ability to seek reconsideration. This rule would eliminate the Asylum Office’s authority to reconsider negative credible fear findings once upheld by an immigration judge. While this aims to make the process more efficient, we argue that “the obstacle to efficiency is not the reconsideration process; rather, it is the flawed initial interview process that fails to provide individuals with the time and support necessary to open up.”

While there are many concerning qualities to this proposed rule, we did voice our support for some aspects of the regulations. These positive changes include ensuring that CFIs are conducted by USCIS officers, not Customs and Border Protection, and allowing the CFI to serve as the asylum application for purposes of the one-year filing deadline and work authorization eligibility.

Ultimately, our Program calls for the proposed rule to be eliminated or substantially changed and, instead, “the agencies should seek additional funding for the immigration courts and Asylum Office alike, to hire more asylum officers to adjudicate claims, and immigration judges to review them, rather than building a new system to ‘streamline’ proceedings for recent arrivals without due process protections.”