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Asylum-Related Provisions of the Senate's Immigration Reform Bill

The proposed new immigration bill now on the Senate floor, the Border Security, Economic Opportunity and Immigration Modernization Act, or S. 744, contains a number of changes to the asylum adjudication process. The most significant changes concern the one-year filing deadline and asylum claims raised as a defense to an expedited removal order. Other changes are to termination of asylum, and employment authorization for asylum seekers.

The one-year filing deadline.

The current INA Section 208(a)(2)(B) prohibits a grant of asylum if the application was filed more than one year after the applicant’s last entry into the US, subject to a number of narrowly-construed exceptions (changed or extraordinary circumstances). Section 3401 of S. 744 very simply and very completely eliminates this one-year filing deadline, and authorizes motions to reopen for people whose asylum claims were denied solely because of it and who were instead granted withholding of removal, in order to now be granted asylum. This motion must be filed within two years of the effective date of the new Act, the movant must not be ineligible for asylum under the INA’s safe third country exception or national security and criminal bars, must be physically present in the US, and must warrant asylum in the exercise of discretion.

This is a huge and welcome change. The one–year filing deadline has repeatedly been criticized as arbitrary and overly-harsh, and denials of asylum because of it are not subject to judicial review. The provision authorizing motions to reopen for people granted withholding of removal instead of asylum because of the one-year deadline is equally welcome, particularly as there is no requirement that these motions demonstrate a continued well-founded fear of future persecution. This amendment should go a long way toward undoing some of the damage done by this one-year filing deadline. Unfortunately, there is no provision for the large number of people who were denied asylum because of the one-year deadline and denied withholding of removal because of its higher standard of proof.

Of course, even without the one-year deadline in place, delay in filing for asylum will presumably still be considered as a factor in determining whether or not the asylum claim has merit, as it was before the one-year deadline came into effect in 1997, but it will not be a rigid mandatory ground for denial.

Credible fear claims

The other significant change is to the procedure for adjudication of credible fear claims. Currently, people detained at the port of entry and placed in expedited removal proceedings, and who fear persecution if returned to their home countries, are interviewed by an asylum officer. If their fear of persecution is found to be credible (a sort of “probable cause” for asylum), they are referred to immigration court for a full hearing on the asylum claim. Section 3404 of S. 744 amends this procedure, by granting authority to asylum officers to conduct a full asylum interview and to grant asylum, after a credible fear finding has been made.

Although it is appealing, whether or not this amendment will have any positive effect remains to be seen. Credible fear interviews historically have been conducted and decided quickly, within weeks rather than months, and the vast majority of claimants are found to have a credible fear of persecution. The affirmative asylum process itself is supposed to be concluded within a few months (although it is currently plagued by delays). Thus, asylum interviews for people found to have a credible fear ought to be held within a few months of the person arriving in the US, yet most of these asylum seekers will not have the supporting documentation necessary for an asylum case to be approved when they arrive at the port of entry, and may not be able to obtain them in time for a quickly-scheduled asylum interview. Likewise, most of them will be unable to obtain effective legal representation within a short time frame, yet supporting documentation and effective legal representation are both key to a successful asylum claim. More significantly, the asylum offices have an approval rate of about one-third, far lower than the credible fear approval rate. Based on this, it seems reasonable to assume that most of these credible fear asylum cases will end up being referred to immigration court anyway.

Therefore, this new procedure may simply shift the initial burden of these positive credible fear cases to an understaffed asylum division within USCIS, and result in overwhelming it completely, before they end up being referred to immigration court. It already takes up to a year and longer for some asylum offices to schedule interviews, because of understaffing and an increase in credible and reasonable fear claims. These delays should caution against adding to the asylum office caseload without some tangible benefit and at least some corresponding increase in funding and hiring of new asylum officers.

Unfortunately, the underlying problem is the expedited removal process itself, and the manner in which it forces people detained at the port of entry to either immediately assert a claim for asylum or else be deported. Unless it is substantially reformed, there will continue to be problems with the manner in which claims for asylum arising in expedited removal proceedings are adjudicated.

Termination of asylum status

Section 3411 of S. 744 authorizes termination of asylee or refugee status if the person subsequently returns to the country of persecution “without good cause as determined by the Secretary [of DHS] or the Attorney General”, who can issue a waiver of this termination either prior to such travel or after return.

The benefits, if any, of this section are unclear. The authority to revoke asylee status for this reason already exists, at INA Section 208(c)(2)(D), and either provision can be easily overcome if the person waits some additional months and becomes a permanent resident, at which point it would not apply.

Employment authorization

Section 3412 of S. 744 amends the language of the INA as it relates to employment authorization for asylum applicants. INA Section 208(d)(2) currently states that although asylum applicants are not entitled as of right to employment authorization, it may be granted pursuant to regulation, but not until more than 180 days after filing the asylum application. S. 744 replaces this hesitant and reluctant language with a simple mandate that asylum applicants shall be provided with employment authorization 180 days after filing the application.

The practical effect of this change will ultimately depend on how it is implemented by the regulations, and on how those regulations are interpreted. However, this new mandatory language establishes an unambiguous and statutory right to employment authorization, and is a clear rebuke of the current regime, in which establishing eligibility for employment authorization can be a difficult obstacle course, challenging to asylum applicants and lawyers alike.

These are the major asylum-related provisions in S. 744. The bill will soon be open to debate on the Senate floor, where these provisions may be modified or deleted entirely. Thus far, however, they have not attracted significant attention, and given other more contentious aspects of the legislation, it seems fair to be cautiously optimistic that they will make into a final bill.