Asylum Changes from the Biden Administration Will Not Ensure Due Process as Required by U.S. Asylum Law

Washington, D.C.— The American Immigration Council and the American Immigration Lawyers Association (AILA) responded to today’s release of an interim final rule related to asylum procedures with concern. The rule is being published in draft form and is slated to take effect in 60 days, however additional public comment is being accepted for 60 days.

In response to the earlier notice of proposed rulemaking, the Council and AILA submitted a joint public comment cataloguing the areas of concern surrounding access to legal counsel and due process, among other issues. While the administration made some positive changes in response, our concerns remain. In particular, we are gravely concerned about the tight deadlines and rapid scheduling of hearings which will curtail due process and interfere with the ability to obtain legal representation. Missing from the announcement is any reference to legal orientation, funded legal representation, or even basic know-your-rights presentations for individuals placed through these hearings or language access plans.

Jeremy Robbins, Executive Director of the Council noted,

“The Council has long advocated for overhauling our asylum procedures to create a system that is fair, humane, efficient, and that treats all people with dignity and respect. While we appreciate the administration’s effort to engage productively on this issue, we have serious concerns about the current rule as proposed. In particular, the punishing and unfair timelines outlined in today’s announcement from DHS leave far too little time to access counsel, let alone to work with counsel to prepare for an asylum hearing. Access to counsel is one of the most important factors in outcomes for people seeking asylum. We look forward to continuing to express our views to the administration and to finding the right balance between expediency and due process.”

Benjamin Johnson, AILA’s Executive Director added,

“It is not hyperbole to state that the outcome of asylum cases can often mean the difference between life and death for individuals and families. ‘Streamlining’ in the manner outlined in this rule would mean that people would have very little chance to access legal counsel, pitting unrepresented vulnerable asylum seekers against the full weight of all the components of the Department of Homeland Security. Efficiency cannot be more important than peoples’ lives. We urge the Biden administration to take another look at this rule and work to ensure that due process protections aren’t thrown by the wayside in the name of speed.”

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For more information, contact: 

Dan Wallace at the American Immigration Council, [email protected]