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1 1 (December 9, 2022)

handle is hein.crs/govejsd0001 and id is 1 raw text is: Congressional Research Service Informing the Iegitive debate since 1914 Updated December 9, 2022 Federal Agency Rule Expands Asylum Officers' Authority Under a Department of Homeland Security (DHS) and Department of Justice (DOJ) interim final rule (IFR) issued in March 2022, asylum officers (AOs) within DHS's U.S. Citizenship and Immigration Services (USCIS) may determine whether non-U.S. nationals (aliens under governing law) encountered at the border who show a credible fear of persecution or torture (credible fear) may seek asylum and related protections. See Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022). The IFR, which is being implemented in a phased manner, departs from prior regulations that strictly authorized immigration judges (IJs) within DOJ's Executive Office for Immigration Review to adjudicate those asylum claims. This In Focus provides an overview of the IFR. Statutory and Regulatory Background In general, aliens within the interior of the United States who commit immigration violations may be placed in formal removal proceedings, and may pursue relief from removal in the course of those proceedings. In contrast, many aliens arriving to the United States, or who have recently entered the country without inspection, are subject to an expedited removal process under § 235(b)(1) of the Immigration and Nationality Act (INA). This process generally permits immigration officers to order the removal of covered aliens without further review. However, if an alien subject to expedited removal shows an intent to seek asylum or fear of persecution if removed, an AO must assess whether the alien has a credible fear supporting consideration of the alien's claim for relief. The INA instructs that, if a credible fear is shown, the alien shall be detained for further consideration of the application for asylum. If a credible fear is not shown, the alien may request an IJ's review of the negative credible fear finding. Since the implementation of expedited removal in 1997, DHS and DOJ regulations have provided that aliens who establish a credible fear shall be placed in formal removal proceedings for an IJ's consideration of their claim for asylum or related relief. 8 C.F.R. §§ 208.30, 1208.30. These regulations have also provided that, if USCIS makes a negative credible fear determination and an IJ overturns that finding upon review, the alien may pursue asylum and related relief in formal removal proceedings. justification for the IFR DHS and DOJ have argued that increasing numbers of asylum claims-driven largely by changing demographics of alien encounters at the southwest border-have caused long asylum adjudication backlogs in immigration courts. According to EOIR statistics, the pending immigration courts caseload reached nearly 1.8 million cases at the end of FY2022, including about 703,000 with pending asylum applications. As a result, average adjudication times for asylum claims originating at the border have often been several years. Thus, the agencies argued, transferring initial responsibility for adjudicating those claims from IJs to USCIS would reduce backlogs and create a more efficient asylum processing system. Credible Fear and Asylum Process under the EFR If an alien subject to expedited removal shows a credible fear, USCIS-rather than referring the case for an IJ's adjudication in formal removal proceedings-may schedule a nonadversarial, asylum merits interview for an AO's consideration of asylum. Following the interview, the AO will issue a decision granting or denying asylum. If the alien fails to show a credible fear and requests an IJ's review of the negative credible fear finding (or refuses or fails to either request or decline such review), the AO will refer the case for an IJ's review. If the IJ determines that the alien has a credible fear, the IJ will refer the case to USCIS for adjudication (alternatively, DHS may begin formal removal proceedings during which the alien may pursue asylum before an IJ). If the IJ concurs with the negative credible fear finding, the alien is subject to removal, but USCIS may reconsider that finding. If USCIS adjudicates asylum, the written record of the positive credible fear finding will serve as the alien's asylum application (in most other cases, an alien seeking asylum has to separately file an application). The AO generally must conduct the asylum merits interview within 45 days after serving the alien with a positive credible fear finding (made either by the AO or an IJ), but the interview may not be scheduled fewer than 21 days after service to afford the alien time to prepare. The alien has a right to counsel at no expense to the government, and may present witnesses or affidavits during the interview. The AO may obtain an interpreter's assistance at the interview. Failure to appear at the interview may result in referral of the alien to formal removal proceedings. If an asylum claim is denied, the AO will issue an order of removal, but may consider the alien's eligibility for withholding of removal and protection under the Convention Against Torture (CAT). These protections bar an alien's removal to the country of persecution or torture (but not necessarily to another country). Unlike asylum, they provide no path to lawful permanent resident status. If the alien requests further review of the asylum denial, the AO will refer the alien's asylum application, along with any written findings on withholding of removal and CAT protection, to an IJ for de novo adjudication in streamlined removal proceedings. The AO's decision and removal order are final unless the alien requests review.

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