After various attempts by the Trump administration to prevent refugees from exercising their rights to seek asylum in the United States, the Biden administration is trying to do the same thing. In May 2023 the Department of Homeland Security issued a new immigration regulation called “Circumvention of Lawful Pathways,” which dramatically altered the process that Congress has mandated for people who enter the United States without visas and who express a fear of harm if they are removed. The new policy effectively eliminates access to asylum for most non-Mexicans who enter the United States at the southern border without permission.
As part of the United States’ longstanding commitment to protect people fleeing persecution, Congress has guaranteed that any noncitizen who is physically present or arrives in the United States may apply for asylum. Even when it created the “expedited removal” process that permits the rapid removal of certain noncitizens who enter without permission, Congress sought to ensure that this process would not wrongfully return people to potential persecution. In service of that goal, Congress established a screening process called the “credible fear interview,” at which people who express fear of removal must show only a “significant possibility” that they could later establish eligibility for asylum after a full hearing in immigration court.
The new regulation upends this system by requiring non-Mexican adults and families who do not enter the U.S. through approved channels at the southern border to show, at their credible fear interviews, that they are not in fact barred from asylum, thus eliminating the “significant possibility” standard at that Congress has mandated at those interviews. The new regulation likewise changes the screening standard for claims to other forms of protection—withholding of removal and protection under the Convention Against Torture—by applying a higher “reasonable possibility” standard to these claims in place of the “significant possibility” standard that has previously been used for these claims. The new regulation also reduces the time between a person’s apprehension and his or her credible fear interview to just 24 hours, leaving almost no opportunity for noncitizens to consult with anyone or to meaningfully prepare for these often life-or-death interviews.
We filed this lawsuit in June 2023, together with the National ACLU’s Immigrants’ Rights Project, challenging the new regulation’s application to these credible fear interviews (other parts of the new regulation are being challenged in an ACLU lawsuit filed in California). The complaint asserts that the new regulation violates the Immigration and Nationality Act and is arbitrary and capricious and violates the procedural requirements of the Administrative Procedure Act.