Homeland Security and the Justice Department finalized a major overhaul Thursday of the asylum system, moving to give immigration officers and judges the ability to quickly toss the kinds of bogus cases that have surged in recent years as smugglers have figured out how to game the system.
Spanning 419 pages, the new regulation would stiffen the standard for proving persecution back home, cracking down on claims based on general levels of violence or gang intimidation. Those who make “frivolous” claims would also see consequences, such as barring future attempts to gain status in the U.S.
The goal is to prevent a resurgence of the record-setting flow of migrant families the country saw last year, many of them lodging asylum claims in order to gain a foothold in the U.S. and then disappear as the case is being decided.
“This rule continues the mission President Trump began four years ago — to close the gaping loopholes in our asylum system in an effort to secure our borders,” said Joseph Edlow, deputy director for policy at U.S. Citizenship and Immigration Services, the Homeland Security agency that oversees asylum officers.
The Justice Department, meanwhile, has purview over immigration judges.
The rule is slated to be published in the Federal Register on Friday, and will take effect 30 days afterward.
It would apply both to new cases at the border, and to those who file their applications from the interior.
One key change is to the standard for proving persecution.
Under the law, to gain asylum applicants must show they have a well-founded fear of facing persecution because of race, religion, nationality, political opinion or membership in a social group, and whose home government is either behind the persecution or so indifferent as to be culpable.
Officials say in recent years that’s been expanded by decisions granting asylum for factors such as domestic violence, fear of crime or living in a gang-controlled neighborhood.
The new regulation seeks to unwind the expanded definitions and restore a more concrete sense of persecution by government actors as the basis for asylum.
That doesn’t mean gang cases would never be approved, officials said, but it should give asylum officers, who work for the U.S. Customs and Immigration Service, and immigration judges, who work for the Justice Department, clearer guidance for deciding cases.
“This new rule reaffirms precedent for what qualifies as a particular social group and provides critical guidance to ensure asylum seekers petitioning under this category for relief cannot subvert the law in their own favor,” Mr. Edlow said.
He also said it makes clear that the persecution must be from a government, and “disagreeing with nonstate actors is not grounds for relief.”
Immigrant-rights activists were dismayed by the decision to finalize the rule, which becomes effective just nine days before the next administration begins.
The American Immigration Council said the changes would “devastate” the system, and speculated that it would become “nearly impossible” to win asylum now.
Beth Werlin, executive director of the council, called on presumptive President-elect Joseph R. Biden to try to erase the changes.
“By choosing to move forward with this regulation, the administration is making clear that deterrence through cruelty is the point until the bitter end,” she said.
When the rule was first proposed over the summer, nearly 90,000 comments were submitted. Many labeled the changes racist while others called it unworkable.
Asylum is the humanitarian protection granted to people fleeing persecution who already have made it to U.S. soil. Refugees are similar, but they apply from outside the country.
Migrants showing up at the border are able to assert a “credible fear” of being sent back home. According to the law, they can be held in detention while their case is decided, but in reality there’s not enough bed space, so they are generally released.
Smugglers realized this and began to advertise to would-be migrants that they could exploit the system, using specific words to trigger the “credible fear” process during initial screening, and gain a foothold in the U.S. Screen-in rates ran as high as 70%.
Many wouldn’t bother to apply for asylum and simply disappear. Those who did apply were usually rejected by the immigration court as the approval rate was about 1 in 5. For Central American families, it ran even lower, at 12%.