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New Asylum Rule Condenses Timelines and Marginalizes Access to Counsel

New Asylum Rule Condenses Timelines and Marginalizes Access to Counsel

Yesterday, the Biden administration announced a forthcoming final asylum processing rule that, while making some welcome changes, ultimately continues to emphasize expediency over justice. The new rule, which will be formally published on Tuesday, March 29, 2022, will remain open to comments and will not go into immediate effect. The Florence Project commends the administration for envisioning a system in which asylum seekers have an opportunity to seek protection in a non-adversarial process and for earnestly engaging in the notice and comment process, honestly considering commentary received and making some much needed changes to the original proposed rule from August 2021. However, we implore the Biden administration to revise current provisions that fundamentally undermine due process and the fair and accurate adjudication of asylum claims.  

Of greatest concern to the Florence Project, the severely condensed asylum case timelines in this rule will be devastating to people’s ability to prepare their cases and access counsel. Not only do people in immigration proceedings have a right to an attorney but access to counsel is one of the most determinative factors in an immigration case. It is not an exaggeration to say that asylum cases can have life or death outcomes, and we must treat them with appropriate seriousness and gravity, including giving people enough time to access an attorney, gather evidence, and prepare their cases. The timelines in this rule – only seven days to file a request for a new interview if mistakes were made in the very first fear screening, as few as three weeks to prepare for an asylum interview, and a directive that cases before the immigration judge generally go to trial within three months of the start of proceedings – would make it nearly impossible for many people to find an attorney, let alone identify and receive corroborating evidence, or otherwise prepare their cases. The harmful effects of these truncated timelines are compounded by the fact that rapid case timelines also will necessarily limit the number of cases attorneys can manage at a given time, putting further strain on the already limited legal resources available. This is particularly concerning for asylum seekers who are regularly detained in isolated prison-like facilities where a study shows only 14 percent are able to obtain counsel.  As it currently stands, this rule prioritizes expeditious processing of asylum cases over fair and accurate decisions. Should this rule be finalized in its current form, the timelines required will all but guarantee that people will be deported back to the dangerous and potentially life-threatening circumstances that they fled. 

Additionally, as long the Biden administration continues to enforce Title 42, a Trump era policy that effectively prevents people from even requesting asylum under the thinly veiled pretext of public health, attempts to reform the asylum system are meaningless. A less adversarial process is a moot point if people can’t even access the asylum officer who should be hearing their case. This is why the Biden administration must immediately end Title 42 and restore meaningful access to asylum at the border.  

The Florence Project will submit a second comment emphasizing the fundamental flaws we see in any system that prioritizes expediency over fairness and accuracy, and we will continue to advocate fiercely for all those seeking protection in hopes that they will be welcomed with dignity into a fair, safe, and humane asylum system.