Originally published on the AILA Leadership Blog
This is not just a blog post, but a call to action. Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees. The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.
Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees. While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process. It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.
Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system. Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution. In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted. Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview. If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution. Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.
For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar. With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system. Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.
Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum. We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement. We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law. And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers. Is anyone else out there thinking, “Enough is enough!?”
In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers. In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes. In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before. Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.” Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.
The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions. The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net. The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.
Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor. The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.
Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications. These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.
These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards. Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States. Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources. Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.
Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations. I don’t know about you all, but for me, “Enough is enough!”
As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts. Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system. This is not just a blog post, but a call to action.
Written by Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair