Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers

The Department of Homeland Security (DHS) and Department of Justice (DOJ) are jointly issuing a rule to revise the processing of certain applications for asylum, statutory withholding of removal, and protection under the Convention Against Torture.

The rule is a key step toward implementing the administration’s blueprint for a fair, orderly, and humane immigration system by building a more functional and sensible asylum system to increase the efficiency and fairness of the process by which noncitizens who are placed into expedited removal proceedings are either removed or, if eligible, granted protection; and to reduce the growth in the backlog of asylum applications in immigration courts.

The rule responds to the more than 5,000 comments received in response to the Notice of Proposed Rule making issued on Aug. 20, 2021. The rule makes several changes to the regulatory provisions in the proposed rule, which were recommended or prompted by public comments.

The rule will be effective 60 days after publication. The departments will solicit further public comment during a 60-day comment period, which will be considered and addressed in a final rule.

Highlights of the rule

• Allows U.S. Citizenship and Immigration Services asylum officers to adjudicate, in the first instance, the asylum claims of individuals who receive a positive credible fear determination after being placed into expedited removal;

• Returns regulations governing the credible fear screening process to apply the longstanding significant possibility standard; and

• With limited exceptions, returns to pre-2018 regulations to screen for eligibility for asylum and statutory withholding of removal without applying bars to asylum and withholding of removal in the credible fear screening process.

These changes are intended to improve the ability of the U.S. asylum system to fairly and efficiently handle the rising number of protection claims made by those encountered at the border and to reduce the growth in the backlog of asylum applications in immigration courts.

This rule will only apply to adults and families who are placed into the expedited removal process on or after the effective date of the rule. The rule will be implemented in phases, starting with a limited number of asylum seekers, then expanding as the USCIS Asylum Division gains resources and builds capacity. It will not apply to unaccompanied children, who are statutorily exempt from being placed into expedited removal.