The Biden administration has officially revealed its latest executive action on border security and immigration, emphasizing the asylum rule’s focus on “national security and public safety.”
The proposed rule, which was widely reported a day before it was announced, would allow asylum officers to decide if a potential asylee poses a threat at an earlier stage in the process.
The initial step in seeking asylum involves a credible fear interview, during which a migrant must express a fear of persecution if they are returned — that’s when the new rule will permit officers to check national security and criminal justice data to determine if an individual poses a threat.
Those changes are currently carried out at a later stage in the process, in a formal asylum interview that investigates each migrant’s eligibility for protections.
“The proposed rule we have published today is yet another step in our ongoing efforts to ensure the safety of the American public by more quickly identifying and removing those individuals who present a security risk and have no legal basis to remain here,” said Secretary of Homeland Security Alejandro Mayorkas in a statement.
“We will continue to take action, but fundamentally it is only Congress that can fix what everyone agrees is a broken immigration system.”
The new rule will be officially introduced on Monday, and will then go through a comments process.
Officials said the rule will apply to a limited number of migrants but did not specify a number or an estimate of how many people would be affected.
“I just want to note that while the population may be limited, they are the individuals that we are most concerned about from a public safety and national security lens,” a Department of Homeland Security (DHS) senior official told reporters on a call Thursday.
“I will say this is really intended to be a national security and public safety measure. And so it is intended to ensure that again, the individuals that we are most concerned about that we encounter — people with serious criminal histories or links to terrorism — can be removed as early as possible in the process.”
The official said asylum officers conducting credible fear screenings would not see a significantly increased workload because of the rule.
“What this rule will do is allow them, when we have clear information that obviously disqualifies someone from asylum or withholding of removal because they are a threat to national security or public safety, to consider that information as early in the process as possible,” they said.
Alongside the new rule, DHS will update its policy on the use of classified information in immigration proceedings, presumably to better screen for national security threats.
The rule comes amid increased rhetoric from Republicans on alleged threats posed by foreign nationals in both the national security and public safety realms.
No one in the United States has ever been killed in a terrorist act committed by someone who illegally crossed the U.S.-Mexico border, and multiple studies have found lower crime rates among immigrants than among native-born U.S. citizens.
Authorities did not say whether asylum seekers who are considered potential threats by immigration officers would have any legal way to challenge that decision.
Heidi Altman, the policy director at the National Immigrant Justice Center, said that the rule is especially risky for people fleeing persecution that could involve arrest or false accusations by their government. Under this rule, an asylum officer can quickly deport them without a chance to explain that the arrest was actually part of the persecution they escaped.
Individuals in immigration proceedings are not guaranteed legal assistance, but they can seek representation. According to the Transactional Records Access Clearinghouse, only about 30 percent of immigrants in proceedings had legal representation as of December.
DHS officials did not immediately reply to a question about whether the rule includes protections for fair treatment.
—Updated at 5:04 p.m.
