Lawsuit challenges new rule that could send more asylum seekers straight to immigration court

Legal aid groups for asylum seekers and refugees are suing to stop a new policy at US Citizenship and Immigration Services (USCIS) that they say changes a key part of the asylum process.

The new policy took effect almost a month ago, and allows USCIS personnel to bypass what’s called the affirmative asylum interview.

It’s a interview that for years has been conducted by a USCIS asylum officer when a person in the U.S. is seeking protection because of a threat in their home country. The process is not available to those already in deportation proceedings.

Melissa Crow is the director of litigation with the Center for Gender and Refugee Studies — one of the groups part of the suit. She says asylum officers are supposed to serve as neutral fact finders.

“Asylum officers are trained in trauma-informed interview techniques, the process before the asylum officer is not adversarial,” she said. “The government's own training materials state that it is well-established that a non-adversarial approach, where the interviewer builds rapport, is the most effective interview style to elicit credible information from an applicant.”

Crow says unlike defensive asylum applications, which are done when someone is in deportation proceedings, affirmative asylum interviewees can be granted asylum without needing to go through immigration court.

But under the new policy, called an interim final rule, asylum officers can skip the interview and refer cases directly to court — where the applicant will face removal proceedings. Crow’s suit argues the new policy was enacted without the proper procedural steps and asks the court to block it.

In an email, USCIS Spokesman Zach Kahler said the U.S. asylum system exists to protect people who genuinely fear persecution and said the new rule will help ensure agency resources are directed to the timely adjudication of those claims “instead of to those seeking to use the system as a loophole."

The Trump administration says the new rule will shorten the amount of time it takes asylum officers and immigration judges to adjudicate applications, and reduce the asylum backlog. But Crow says, the rule will likely further strain the court system.

“The rule admits that in some cases, they're going to refer people [to court] who could have easily been granted asylum and taken out of the system quickly,” Crow said. “But the larger problem, I think, is that it is only going to increase the horrendous backlogs that have plagued the immigration court system for so long — because they're going to have so many more cases in front of them.”

Michael Knowles is the executive vice president for the American Federation of Government Employees’ National Citizenship and Immigration Services Council 119 — a coalition of local unions representing more than 13,800 USCIS employees.

He says regardless of immigration status, anyone in the U.S. or arriving in the U.S. has the right to apply for asylum and have an interview with an asylum officer, who determines whether the person meets the definition of a refugee under U.S. and international law.

“Someone who is fleeing persecution on account of their race, religion, nationality, membership of a particular social group, or their political opinion,” Knowles said. “The U.S. is required to protect refugees, and asylum officers are the officials who are tasked to decide whether the person is a refugee or not.”

To do that, he says, asylum officers must conduct the interview.

Knowles worked as an asylum officer for 34 years before retiring in October, and he also heads his union’s local chapter. He says officers do an average of two affirmative asylum interviews every day, and the process is extensive.

“People need to have a fair shot before they end up going to the court, because in the court, they’re in an adversarial hearing where the government is trying to deport them, rather than determine whether they should be protected,” he said.