The Administration's New Asylum Restrictions and its Implications for Asylum Cases
Recently the administration has quietly, and without much notice, changed the regulations about how asylum cases are processed. Specifically, the administration has made defensive asylum claims more difficult to pursue.
There are two general ways to claim asylum; either, affirmatively or defensively. Affirmative claims are claims made by individuals who are already in the United States, generally after a legal entry and can be handled by either administratively by USCIS or through the Immigration Court. However, most asylum claims are done either at the border or at a port of entry to the United States and are known more generally as being defensive claims.
Someone without a valid visa can still be granted entry into the United States through a claim of asylum, that is a claim that they would be oppressed, harmed, tortured or killed because of their political, religious, ethnic, racial or other specific social identity. The procedure in these cases is to first conduct a credible fear interview immediately at the border or port of entry. In this interview the asylum officer tries to determine if the individual has a credible or genuine fear of returning to their home country and for what reason. If they are convinced the case is referred to the immigration court for final adjudication (a process which can take several years) and the asylum seeker is paroled into the United States and released from immigration detention. However, if the asylum officer is not convinced then the asylum seeker is denied entry into the United States and immediately removed to their home country without a further hearing at the immigration court.
The administration’s action is would require tougher standards for determining credible fear and would allow asylum officers to disregard cultural factors such as the asylum seekers unfamiliarity with the language being spoken, past trauma, and discomfort with being detained. Depending on how this directive is implemented this could be a relatively minor change or it could make applying for asylum at a port of entry or the border nearly impossible. The most likely result is that defensive asylum cases will likely become more arbitrary and more greatly affected by the cultural prejudices of the particular asylum officer than before.
This action does not affect affirmative asylum claims or any asylum claim which do not require this determination. However, this does indicate a likely intention to further restrict asylum claims in the future.
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