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Biden administration finalizes new rule reshaping US asylum system

<i>Cesar Rodriguez/Bloomberg/Getty Images</i><br/>A migrant from Haiti near the San Ysidro Port of Entry border crossing bridge in Tijuana
Bloomberg via Getty Images
Cesar Rodriguez/Bloomberg/Getty Images
A migrant from Haiti near the San Ysidro Port of Entry border crossing bridge in Tijuana

By Priscilla Alvarez, CNN

The Biden administration will soon release a federal regulation that overhauls the US asylum system to settle claims at a faster pace and help alleviate the immigration court backlog.

The new rule gives asylum officers more authority by allowing them to hear and decide asylum claims — cases that are usually assigned to immigration judges — when migrants present at the US southern border. The regulation applies to migrants who are subject to expedited removal. Unaccompanied children are exempt.

Administration officials have been alluding to the change in processing asylum claims for months. It comes as the administration is under mounting pressure from Democratic lawmakers and immigrant advocates to overhaul the US immigration system and amid concerns about a potential migrant surge.

By shifting the adjudication of claims from immigration judges to asylum officers, officials hope cases will be completed in months, not years. There are 1.7 million cases pending in immigration court, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks immigration court data.

“It will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and enable immigration judges to issue removal orders when appropriate,” said Attorney General Merrick Garland in a statement.

Border authorities have been leaning on a public health authority, known as Title 42, to turn back migrants arrested at the US-Mexico border, barring some exceptions.

Those who aren’t subject to the authority and are seeking asylum are then screened by asylum officers. If they pass the credible fear screening, their cases progress through the immigration court system.

The new regulation could alleviate the backlog by allowing asylum officers to adjudicate claims, instead of immigration judges who are facing thousands of cases already. US Citizenship and Immigration Services — an agency under the Department of Homeland Security — oversees asylum processing.

“It is an effort to deliver greater efficiency to the asylum process, while not compromising the due process that claimants have before them,” Homeland Security Secretary Alejandro Mayorkas told reporters last week, adding that implementation will be phased in, given resource constraints.

The USCIS portion of the process, which includes the credible fear determination and a decision on the asylum claim, is still expected to take up to 90 days. The asylum seeker may be in detention or released depending on individual circumstances, officials told reporters Wednesday.

If a case is denied, the individual may request review by an immigration judge under a streamlined process. The immigration judge is expected to issue a decision roughly 90 days after the proceedings begin, though continuances may also be requested, the officials added.

The administration submitted the proposed version of the regulation last August and received more than 5,000 public comments. The final rule, which officials previewed Wednesday, will publish in the Federal Register in the “coming days” and likely take effect in the summer.

The administration is still assessing who the rule will apply to and where it will be implemented, officials said, emphasizing that the rollout will start small. One of the challenges officials are likely to face is lack of sufficient resources given strained capacity at USCIS.

Officials told reporters they’re bolstering staff to implement the rule when it takes effect but declined to say how many additional resources will be required.

“Based on case volumes and capacity for both the existing workload and the new work resulting from this rule, USCIS has increased and plans to further increase the staffing and infrastructure to handle the full volume of work contemplated under the rule,” the USCIS official said.

USCIS had previously estimated that it needed to hire around 800 new employees and spend about $180 million to implement the process for roughly 75,000 cases annually, according to text of the proposed regulation.

Thursday’s announcement is the latest in a series of efforts to get through immigration cases. Last year, the Biden administration introduced plans to speed up court cases for recently arrived migrant families who are seeking asylum in select cities. President Joe Biden cited that effort in his State of the Union address earlier this month.

“We’re putting in place dedicated immigration judges in a significant large number so families fleeing persecution and violence can have their cases heard faster and those who don’t legitimately hear can be sent back,” Biden said.

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