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What will be the effect of the Biden administration’s new asylum regulation?

NORTH TEXAS — The situation at the U.S.-Mexico border is repeatedly cited by voters as one of the issues they consider most important ahead of the November elections.

The problems at the border are multi-faceted, but one of them is how long the asylum process can take. It can take years from the moment an asylum seeker crosses the border to the moment he has to appear in court.

The Biden administration recently issued a new regulation aimed at speeding up the process. But not everyone is convinced the move will help clear the court backlog, and some are concerned about the costs.

What the new regulation would do

Simply put, this new arrangement would allow asylum officials to reject migrants earlier in the process.

Certain barriers already exist that prevent some migrants from qualifying for asylum. These bars include whether the migrant:

  • Has been convicted of a “particularly serious offence”
  • Is a threat to national security
  • Participated in the persecution of a person on grounds of race, religion, nationality, membership of a particular social group or political opinion
  • Committed a ‘serious non-political crime’ outside the US
  • Was firmly resettled in another country before arriving in the US

Currently, these bars are considered by an immigration judge at a later step in the immigration process. Under the new proposal, an asylum officer would be given the authority to consider these blocks during the credible fear interview, which determines whether the asylum seeker’s claim is valid. This usually happens shortly after a migrant enters the country.

Paul Hunker, former chief counsel for U.S. Immigration and Customs Enforcement in Dallas and current partner at the immigration law firm DMCA, LLP, says it can be a problem when asylum officials make “very complicated decisions” in a short period of time.

“Even my lawyers would have a hard time making these calls and the judges would have a hard time making these calls,” Hunker said.

In most cases, migrants have done so at the time of the credible fear interview not had the opportunity to consult with an attorney, which may affect the outcomes.

Data kept by TRAC – Syracuse University shows that of the 1.2 million immigration cases it has tracked in Texas since 1998, 835,000 ended with a removal order. Of these cases, 711,000 involved migrants without legal representation.

“It can be difficult for people who have suffered a lot of trauma coming north to articulate why they have a right to asylum,” Hunker said. “I really don’t think it’s going to save much time and the costs are… non-citizens who really have a right to seek asylum will be prevented from seeking asylum.”

This new arrangement has not yet come into effect. There is a 30-day public comment period that runs until June 12.

Who is eligible for asylum?

The right to seek asylum was first established by the United Nations General Assembly in 1948. It was later incorporated into federal law by the United States in the Refugee Act of 1980.

Not everyone who wants to flee their home country is eligible for asylum under U.S. law. In fact, there are only five categories for asylum seekers. A person should fear persecution because of:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

Read more about the asylum procedure below:


Who can apply for asylum in the United States?

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