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Proposed Rules Would Allow Decisions on Many Asylum Cases Without Judges



On August 20, 2021, the Department of Homeland Security and the Department of Justice published a notice of proposed rulemaking which, if enacted, would amend existing regulations on expedited removal proceedings. The regulations would allow individuals that are subject to expedited removal proceedings to have their claims for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) initially decided by a United States Customs and Immigration Service (USCIS) asylum officer. Persons that are subject to expedited removal proceedings are generally adults and families apprehended within 100 miles of a US border or at an international airport who have recently entered the United States.


Under current law and processes, USCIS asylum officers interview persons subject to expedited removal solely to determine if they have a credible fear of persecution or harm if they were to return to their home country. If there is no finding of credible fear, such persons are subject to immediate removal (deportation). Those persons that show credible fear are allowed to stay in the country subject to a future proceeding before an immigration judge. The judge will hold a trial to determine if such persons receive asylum, withholding of removal or protection under CAT. Unaccompanied children are exempt from expedited removal proceedings.


The proposed rules provide for proceedings before the asylum officer that would be a non-adversarial proceeding, as opposed to the trial-type proceeding before an immigration judge. At present, only immigration judges decide if people should be granted asylum, withholding of removal or protection under CAT, and often after years of delay in the existing immigration court system. Under the proposed rules, if a USCIS asylum officer does not grant an individual asylum, withholding of removal or protection under CAT, the individual may appeal the asylum officer’s decision to an immigration judge.


The Department of Homeland Security will receive written comments on the proposed rules and then decide whether to enact them. The Department’s decision is anticipated in 2022.


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Please, call Rothfelder Stern Immigration Attorneys

Our Main Office: 407 Greenwood Ave., #301 Trenton, NJ 08609

(also in Albany, NY)

Office: (609) 394-1000

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