Should Asylum Seekers Establish a Credible Fear of Persecution & Apply for Asylum in a Safe Third Country Before Admission to the U.S.? (S. 2292)

What is S. 2292?

(Updated March 5, 2021)

This bill, the Asylum Abuse Reduction Act, would require asylum officers at U.S. embassies and consulates to conduct credible fear screenings before admitting unauthorized immigrants entering from Canada or Mexico who are seeking asylum in America. Under this process, immigration officers wouldn’t be able to admit asylum seekers into the U.S., and would instead instruct them to schedule an asylum hearing with the most convenient U.S. embassy in Canada or Mexico. During these hearings, asylum officers would conduct in-person interviews to determine whether the claimant has a credible fear of persecution in their home country. Additionally, asylum seekers would be required to seek asylum in a different country other than their own and be rejected before claiming asylum in the U.S. (known as the “safe third country rule”).

Unauthorized immigrants could be granted asylum if they were persecuted in their country of origin on account of their race, religion, nationality, membership in a particular social group, or political opinion; or would be subject to torture if they returned to their country of origin. Failure to show up for immigration court would result in a criminal bench warrant for an unauthorized immigrant’s arrest.

This bill would also make the Secretary of Homeland Security (DHS Secretary) responsible for establishing an alternatives to detention pilot program. Under such a program, unauthorized immigrants could be released into the supervision of qualified organizations with federal government contracts to facilitate their compliance with all stages of their immigration proceedings. Unauthorized immigrants could only participate in the pilot program if they:

• Certify that they will comply with all stages of the immigration proceedings, including removal, if ordered;
  
• Acknowledge that they are only entitled to a single appeal of an immigration judge’s decision; and
  
• Sign a privacy waiver.

Unauthorized immigrants who fail to comply with the requirements of the pilot program could be subject to arrest, detention, and expedited removal proceedings.

The DHS Secretary, in consultation with the Director of U.S. Immigration and Customs Enforcement (ICE), would be responsible for developing performance metrics for organizations that run pilot programs. These metrics would include rates of absconsion, arrest, completion of immigration cases, and any other metrics that the Secretary determines measure compliance with performance standards. If an organization running a pilot program failed to comply with performance standards, the DHS Secretary could require it to return funds paid to it during the noncompliance period, terminate its contract, or impose any other penalty authorized by the contract.

The DHS Secretary would submit a report to the House & Senate judiciary & homeland security committees on the implementation of the alternatives to detention pilot program.

Finally, this bill would codify the Trump administration’s Third Country Asylum Rule. To this end, it would prohibit migrants from claiming asylum unless they have applied for protection from persecution or torture in at least one country outside the alien’s country of citizenship and was denied asylum by that country. There would be an exception for migrants that are victims of human trafficking.

Argument in favor

The asylum system is being abused by people who illegally enter the U.S. then file frivolous asylum claims after they’re apprehended to prevent their deportation. Moreover, the volume of asylum claims to process is overwhelming immigration courts. Asylum seekers should require to file their claim in a safe third country they pass through en route to America to allow for proper vetting and deter people from making a dangerous attempt to enter the U.S. illegally.

Argument opposed

The number of false asylum applications is small, and the increase in asylum seekers in recent years is directly attributable to crises in Central America and around the globe. Rather than turning away asylum seekers, the U.S. should seek to help those who have credible fears of returning home to violence and worse regardless of whether they enter the country illegally before making their asylum claim. Asylum-seekers shouldn’t be required to apply for asylum in a safe third country they pass through on their way to the U.S.

Impact

U.S. asylum officers; Department of Homeland Security; U.S. Immigration and Customs Enforcement; Committee on the Judiciary of the Senate; Committee on Homeland Security and Governmental Affairs of the Senate; Committee on the Judiciary of the House of Representatives; Committee on Homeland Security of the House of Representatives; Secretary of Homeland Security; and Director of U.S. Immigration and Customs Enforcement.

Cost of S. 2292

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. James Inhofe (R-OK) reintroduced this bill from the 115th Congress to complement the president’s plan to build a wall by addressing immigration loopholes to strengthen the asylum process’ integrity and ensure it is only used by individuals who are genuinely seeking asylum:

“The asylum process should be for those who truly need it—not individuals using it after they are caught illegally crossing the border in an attempt to avoid deportation. That’s why I’m reintroducing my Asylum Abuse Reduction Act. By reforming our asylum process, we can minimize false asylum claims, ease the backlog on our immigration courts and end ‘catch and release’—all while improving the process for those who truly need it. The border is in a serious crisis. President Trump gets that—he really does—and he is changing it. I am proud of the administration’s continued work to build the wall, increase support for ICE and Customs and Border Protection agents and eliminate sanctuary cities. With the addition of the Asylum Abuse Reduction Act, we can make real reform to our broken immigration system and secure the southern border.”

Original cosponsor Sen. Mike Rounds (R-SD) adds: 

“Our immigration system is flawed and too many individuals are manipulating our generous asylum laws to illegally enter the U.S. Asylum is meant to provide a safe haven for individuals fleeing persecution. It should be a last resort for those sincerely fearing for their lives – not be used as a free ticket into the United States for those who would simply prefer to live in our country. Our bill would strengthen our asylum laws so those who truly do need to come to us for safety can do so. Our immigration system is in need of long-term reforms to strengthen border security and encourage migrants to pursue legal immigration, which I’ll continue to work toward. In the meantime, our legislation takes a step toward reducing the number of individuals who falsely claim asylum to illegally enter the country.”

Andrew Arthur, a former immigration judge and current fellow at the Center for Immigration Studies, which advocates for lower levels of immigration, is skeptical about the validity of many credible fear claims, arguing that “credible fear” has become an overly broad legal “catchall for truly inventive lawyers.” Arthur praises efforts to tighten the asylum application process, saying, “One, it is going to streamline the system. Two, it's going to cut down on the number of claims that are inevitably going to be found to be invalid."

The Trump administration asserts that asylum policies are currently broken and subject to “rampant abuse and fraud.” President Trump has made tighter controls of the asylum process and elevating the threshold standard of proof in credible fear interviews part of his list of immigration principles and policies. 

In an October 2017 speech at the Department of Justice, then-Attorney General Jeff Sessions said too many immigrants were taking advantage of the rules and urged Congress to pass legislation to make it harder for asylum petitions to be granted. AG Sessions called the current policy wherein unauthorized immigrants whom federal officials determine to have a “credible fear” of returning to their home countries are released before immigration proceeding hearings a “loophole” in the law. AG Sessions advocated for imposing and enforcing penalties for “baseless” asylum applications, elevating the threshold standard of proof in credible fear interviews, and expanding the ability to return asylum seekers to safe third countries. Further, Sessions called many people’s credible fear claims simply a “ruse to enter the country illegally.”

Lindsay M. Harris, an assistant professor of law and co-director of the Immigration and Human Rights Clinic at the University of the District of Columbia, David A. Clarke School of Law, argues that the increase in asylum claims is a natural result of the increase in refugees on a global level, as well as the proximity of the U.S. to Central America, where gang violence and poverty have pushed thousands out in recent years:

“Indeed, there has certainly been an increase in asylum claims — but this corresponds with the increase in refugees around the world. One of the humanitarian crises producing refugees happens to be south of our border, and this accounts for the exponential increase in asylum claims and individuals seeking protection in the U.S. through the credible fear system, rather than a sudden increase in fraudulent claims… [The increase in people seeking asylum is] very much based on the humanitarian crisis in Central America.”

Harris counters Sessions’ claim that individuals who never show up to their immigration hearings, or even file an asylum application after arriving in the U.S., do so because their claims lack merit, or their claims of fear were ruses to enter the U.S. illegally. Instead, Harris says, the problem is lack of clarity about the asylum application process. According to Harris, asylum seekers are released with “very little orientation” of what’s expected next, and many think articulating their case to asylum officers, and others think they have already been granted asylum upon their release.

Geoffrey A. Hoffman, director of the University of Houston Law Centers Immigration Clinic, sums up the issue: “The issue of fraud in individual cases should not overshadow the reality which is that grants of asylum are extremely low, especially for applicants who are not represented by counsel.”

Human Rights First, a group that provides pro bono legal assistance to refugees, calls the characterization of asylum seekers as “threats and frauds” baseless. The organization’s senior director, Eleanor Acer, says, “these individuals are not criminals. They are mothers, teenagers, and children desperate to escape violence and persecution.” Jeremy McKinney, an immigration lawyer in North Carolina and secretary of the American Immigration Lawyers Association, adds that asylum-seekers are “amongst the most vulnerable people in our society,” and that “to have their rights curtailed so that the system moves faster I think should be considered a moral outrage.”

This legislation has four Republican Senate cosponsors in the 116th Congress. Its House companion, sponsored by Rep. Kevin Hern (R-OK), has one cosponsor, Rep. Daniel Meuser (R-PA). Last Congress, this legislation didn’t have any cosponsors and didn’t receive a committee vote.

Of Note: From 2014 to 2016, the U.S. saw a 234% increase in asylum applications, generating a backlog in immigration courts. Currently, unauthorized migrants who cross the border and claim asylum are released pending credible fear screenings and other legal procedures — but they often fail to show up for proceedings, never completing the asylum process. In 2017, DHS reported that over 40,000 unauthorized immigrants never appeared for their court proceedings. At present, when asylum applicants fail to show up for court, their information is not entered into police databases.

In FY2016, U.S. Citizenship and Immigration Services (USCIS) decided on nearly 93,000 credible fear cases, establishing fear in about 78% of cases. For comparison, the agency reviewed over 5,000 cases in fiscal year 2009.

Media:

• Sponsoring Sen. James Inhofe (R-OK) Press Release (116th Congress)
  
• Sponsoring Sen. James Inhofe (R-OK) Press Release (115th Congress)