Jeffrey S. Chase: The Need For Full-Fledged Asylum Hearings

Former Immigration Judge Jeffrey S. Chase is not a fan of the Biden Administration recently published proposed asylum regulations:

“It has been said that Immigration Judges hear death penalty cases under traffic court conditions.  The death penalty cases are of course asylum claims, which, if wrongly denied, can result in the applicant being returned to their death.

The Biden Administration recently published proposed regulations seeking to revise the system for hearing the asylum claims of those arriving at the southern border.  Any positives envisioned in the proposal are greatly outweighed by the damage the rules will do to the right to immigration court review.  If enacted as drafted, traffic court conditions would be far preferable to the meager access to review that would remain for many asylum seekers. 

To provide some context: presently, arriving asylum seekers who after screening by USCIS asylum officers are found to have established a sufficient risk of harm proceed directly to Immigration Court, where they have a full hearing on their claim before an Immigration Judge.  In those proceedings, asylum seekers may freely submit  documents, call witnesses, and elicit testimony.

This was as Congress intended it. . . .

Under the proposal, those who pass the preliminary screening (known as a credible fear interview) will instead have their full asylum claim heard by an asylum officer.  This could be a positive development if the rules continued to assure the right to a full court proceeding to those not granted at this initial stage.

Unfortunately, the proposed rules would reduce Immigration Judges to reviewers of transcripts of the asylum office interviews.   Additional evidence (including testimony)  that was not provided at the Asylum Office will only be allowed if deemed to be `non-duplicative’ and necessary to complete the record.  If an Immigration Judge determines that the applicant (who may not have been represented by a lawyer) provided sufficient evidence to the asylum officer, the claim may be decided entirely on the record from that initial non-court interview.”

KJ

It bears noting that the Immigration Judges making these determinations remain subject to the completion quotas imposed under the prior administration.  While Immigration Judges must be guided by the requirements of due process and fairness in making such decisions, it would be remiss not to point out that for newly hired judges still on probation, the ability to exclude new evidence and essentially rubber stamp the asylum officer’s decision offers the prospect of a very quick completion for quota purposes.  Judges should not be put in the position of choosing between the dictates of justice and their own job security.