A person stands next to the U.S.-Mexico border barrier painted with a mural depicting people who arrived in the U.S. illegally as children and were deported as adults on July 22, 2021 in Tijuana, Mexico. | Mario Tama/Getty Images
WASHINGTON — The Biden administration announced Thursday steps to expedite asylum cases at the U.S.-Mexico border in an attempt to resolve a years-long backlog, but policy advocates worry the streamlined process could prevent asylum seekers from obtaining legal representation if their cases are denied.
“If somebody is not approved in the first instance, they’re going to be required to go through a pretty fast process to appeal,”Jennifer Ibañez Whitlock, an immigration attorney and policy counsel for the American Immigration Lawyers Association, said in an interview. “I firmly believe it’s going to affect people’s ability to get a lawyer.”
The departments of Justice and Homeland Security are issuing a rule to allow U.S. Citizenship and Immigration Services officials, rather than immigration judges, to make decisions on claims by migrants at the border that they cannot return to their home countries for fear of torture or persecution. This rule would not apply to unaccompanied children.
If the USCIS officials determine a person cannot claim asylum, then those individuals will face deportation and proceedings will be handled within 90 days by an immigration judge.
But if the person seeking asylum is able to establish a credible fear of persecution, they get an appointment with an asylum officer 21 to 45 days after the determination is made. The officer then has 60 days after the interview to determine whether to grant asylum.
“Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed,” Secretary Alejandro Mayorkas said in a statement. “We will process claims for asylum or other humanitarian protection in a timely and efficient manner while ensuring due process.”
That decision currently falls on the nearly 500 immigration judges, and those backlogs can take years — but officials say this new rule would cut that time down to months. The current backlog of immigration cases is nearly 1.5 million, according to tracking by Syracuse University.
“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,” Attorney General Merrick B. Garland said in a statement announcing the rule.
An asylum case before a judge can take anywhere from two to three years, Whitlock said. If a migrant is granted asylum, then they are allowed to stay in the U.S. and qualify for permanent residency a year after that decision.
She added that USCIS has a high turnover rate of asylum officers, and she’s worried the staff won’t be able to handle the incoming cases when they have their own backlogs.
USCIS has a backlog of 9.5 million unattended applications, according to the Migration Policy Institute.
Rep. Andy Biggs, an Arizona Republican, questioned Mayorkas about staffing levels last year. The agency reported that in fiscal 2021, it had 769 asylum officers, with a goal of reaching 785.
“I have a feeling that people who are under this rule are going to go unrepresented,” Whitlock said.
A 2016 study by the American Immigration Council found that only 37% of immigrants find legal representation in removal cases, and immigrants in detention centers were less likely to acquire legal representation.
The study also found that representation rates varied among nationality. Mexican immigrants have the highest detention rates, at 78%, and the lowest legal representation at 21%, compared to Chinese immigrants who had the lowest detention rate at 4% and the highest legal representation rate at 92%.
Immigrants who were detained, but had legal counsel, were “nearly 11 times more likely to seek relief such as asylum than those without representation (32 percent with counsel versus 3 percent without),” according to the study.
Whitlock said to expect someone seeking asylum to obtain their own legal representation, especially if their asylum case is denied, “doesn’t set people up for success.”
“It’ll get you fast decisions,” she said. “But if you’re trying to identify people who should be offered protection based under our laws, I think you’re gonna end up sending back a lot of asylum seekers to harm.”
Another sticking point is a language barrier, she said. A portion of migrants seeking asylum are Haitian. Those migrants denied asylum would have to find an interpreter or a lawyer fluent in Haitian Creole.
Another complication is Title 42, which allows the U.S. to expel migrants making asylum claims during a period of health crisis such as the coronavirus pandemic. The Centers for Disease Control and Prevention, which reauthorizes Title 42, has a March 30 deadline to determine whether to continue the policy.
Title 42 is a Trump-era immigration policy that the Biden administration moved to scrap, but a Texas district court ruled that the White House had to keep the policy in place.
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