Last week, the White House once again punted on immigration, announcing it would delay a policy review that was intended to address the crisis of mass deportation. The move was another frustrating but unsurprising attempt to appease House Republicans who oppose immigration reform. But at the border, a more obscure policy shift may already be quietly promoting more expulsions of immigrants. New federal guidelines for reviewing asylum claims could tighten the screening process and force asylum seekers to return home to face persecution.
Asylum has historically served as a pathway for immigrants facing human rights violations to seek sanctuary, but the gates may be narrowing. In February, Homeland Security issued revised interview guidelines for the initial phase of the asylum application, which examines immigrants for a “credible fear” of endangerment. The screening gathers basic biographical information and documents their fears of persecution or torture, to determine general potential eligibility for humanitarian relief. This should ordinarily be a low threshold, preceding more rigorous, often lengthy reviews in court or in a more extensive administrative application process. But according to pro-immigrant activists, the new guidelines, which contain more elaborate rules on evaluating evidence of persecution, raise the level of scrutiny of claims to “significant possibility.” Legal advocates and human rights groups argue that this unfairly imposes a harder standard of review, closer to what they would otherwise have to prove in court. Advocates say the aim of credible fear interviews should be simply to screen out clearly ineligible claims, not to adjudicate potentially genuine ones.
Critics warn that the measure could intensify deportations of people with relatively unconventional claims of persecution, such as those put forward by victims of domestic violence, LGBTQ people fearing attacks on their sexual orientation or gender identity, or people facing threats and extortion for their political affiliations. Additionally, the new revisions may complicate the legal process for the relatively novel cases of undocumented youth asylum seekers, who petition for relief on the grounds that deportation back to their home communities would put them at risk of persecution based on their American background.
In an analysis of the guidelines, legal scholar Bill O. Hing notes that credible fear is supposed to be “structurally less rigorous than the standard for asylum,” yet the new guidelines may undermine that precautionary, “better safe than sorry” principle, by raising the rigor of the review in a way that denies people due process, deprived of a full legal review or even counsel.
According to Niloufar Khonsari, an attorney with San Francisco–based PANGEA Legal Services, the revised guidelines “will require applicants to go through a new, more rigorous credible fear screening with few of the due process protections that are available to asylum applicants in immigration court or even at the asylum office.” And many will likely undergo this ordeal on their own, because of a chronic lack of legal representation at the border. “Most credible fear interviews are conducted inside detention without counsel,” Khonsari explains via e-mail. “The asylum officer acts as judge, jury, and prosecutor. Even when counsel is involved… our role is circumscribed. We are representing our clients pro bono and from the other side of the state or the country.”