Asylum Screening Guidance Ruled Too High A Bar Too Early
Law360 (November 2, 2020, 8:49 PM EST) — A D.C. federal court has ruled that the Trump administration’s guidelines on asylum-seekers’ initial fear screenings are illegal, vacating the guidance in its entirety and ordering new fear assessments for the individuals who couldn’t clear the guidance’s asylum bar.
U.S. District Judge Ketanji Brown Jackson scrapped the guidance Saturday, explaining in her order that U.S. Citizenship and Immigration Services had set an unlawfully high standard for individuals to clear during initial asylum screenings, instead of the “low bar” described in immigration law.
“The court concludes that USCIS has unlawfully required screening officers to make credible fear determinations in a manner that is manifestly inconsistent with the two-stage asylum eligibility framework that the [Immigration and Nationality Act] plainly establishes,” she said.
Under the INA, an asylum-seeker must first show they have a credible fear of persecution in their home country during a “credible fear interview” before they can present their claims to an immigration judge. This first step is meant for officers to screen out invalid claims for protection, but applicants are not required to prove their asylum eligibility at that time, the judge said.
USCIS describes how asylum officers conducts these initial reviews in a manual known as the Lesson Plan. However, USCIS’ April 2019 update to the guidance spurred the International Refugee Assistance Project and the Refugee and Immigrant Center for Education and Legal Services to file suit.
The organizations argue that the new instructions were designed to drive down the number of people who pass these initial screenings, including five asylum-seekers who failed these early-stage interviews after the updates went out.
USCIS said the manual complied with the law. But Judge Jackson found otherwise, saying that parts of the Lesson Plan essentially require applicants to prove asylum eligibility during the initial fear assessments, instead of during the second-stage immigration court hearing.
She pointed out that the Lesson Plan mandated that applicants provide “more than significant evidence” that they are entitled to asylum during these early screenings. But asylum-seekers only need to show that they have a “significant possibility” of proving their eligibility for protection, the judge said.
The manual further directed officers to graft later-stage considerations onto these early screenings, including whether an asylum-seeker could safely move to another part of their home country, according to the opinion.
“USCIS is not free to add factors that the regulations recognize at other stages of the process to the considerations that an asylum officer must take into account during the credible fear assessment,” she said.
The judge acknowledged that Congress didn’t fully detail credible-fear interviews when it wrote the immigration law. But USCIS’ fill-ins for these gaps don’t work, she said, pointing to the Lesson Plan’s mandate that asylum-seekers provide evidence that establishes “every element” of their asylum applications.
That instruction is “entirely unreasonable,” she said. “Imposing such a requirement is tantamount to making asylum applicants prove that they are a refugee during their credible fear interviews.”
USCIS had additionally argued that the court couldn’t scrap the entire document, which it uses to train its asylum officers, should it find parts of it illegal. Judge Jackson acknowledged the validity of those concerns — and mentioned in a footnote that other disputed updates were permissible — but concluded that the manual’s directives were so intertwined that the illegal portions couldn’t be excised from the rest.
She vacated the manual and ordered the government to redo the plaintiffs’ credible fear interviews.
IRAP’s Justin Cox, an attorney on the suit, told Law360 on Monday that the order would affect the tens of thousands of individuals who request credible fear interviews in a regular year.
He pointed out that how officers conduct those screenings takes on further significance in light of the Trump administration’s expanded expedited removal program. “When they start enforcing … the one protection that those people will still have is asking for a credible fear interview,” he said.
“Obviously we’re thrilled with the outcome,” Cox said. But “this administration has really destroyed the asylum system … and under any circumstance it’s going to take a long time to build our humanitarian protections back to where they should be … this case pushes us one step closer to that.”
USCIS and the U.S. Department of Homeland Security didn’t immediately respond Monday to requests for comment.
The asylum-seekers are represented by Justin Cox, Kathryn Austin, Deepa Alagesan and Mariko Hirose of the International Refugee Assistance Project and Manoj Govindaiah and Maria Osornio of the Refugee and Immigrant Center for Education and Legal Services.
–Editing by Orlando Lorenzo.
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