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President Joe Biden’s administration is moving to upend decades of policy and allow migrants crossing the U.S. border to make their cases for asylum before Department of Homeland Security officials, rather than judges.
Under rules in place since the 1990s, asylum-seekers are swiftly placed in the backlogged immigration court system when they arrive in the U.S., sometimes after DHS screening. The administration wants to shift to DHS the initial adjudication of claims by those with a credible fear of persecution at home.
A notice published Tuesday on the White House Office of Management and Budget’s regulation website signals a public notice-and-comment rulemaking process will begin soon.
The new approach, if made final, would mark an about-face from President Donald Trump’s efforts to tighten asylum requirements as well as a wholesale change to the way border-crossers’ asylum claims are treated.
DHS previously signaled it would advance the proposal through a fast-tracked regulatory process. Its apparent decision to instead pursue a traditional rulemaking approach may help shield a final decision from legal challenges, said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center.
Lack of Counsel
Some immigrant advocates say they hope the changes will reduce backlogs for those seeking asylum.
“What’s necessary is reshaping the process to avoid putting people into a yearslong backlog in immigration court,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, a nonpartisan immigration advocacy group. He said he’s eager to see the full text of the proposal once it’s published because “the devil is in the details.”
The Biden administration’s attempt to ease the asylum backlog could have unintended consequences, said Columbia Law School professor Elora Mukherjee, an immigration law specialist.
That’s because asylum-seekers would face a disadvantage if they are detained and lack adequate access to counsel before making their case before a DHS official, she said.
“When children and families have an opportunity to present their cases in immigration court, at least they are afforded adequate time to secure counsel or prepare,” Mukherjee said. “There are a lot of questions about how this will be implemented.”
The impact of the change also depends on whether it becomes the “new normal” for asylum cases to go through DHS or the policy is applied more sporadically, said Austin Kocher, a research professor studying immigration issues for Syracuse University’s nonpartisan Transactional Records Access Clearinghouse.
DHS didn’t immediately respond to a request for more information about the plan, which the agency originally signaled it would pursue in a regulatory agenda released last month.
To contact the reporter on this story: Ellen M. Gilmer in Washington at firstname.lastname@example.org