Featured Issue: Asylum and Credible Fear Interim Final Rule
Table of Contents
The interim final rule Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers (Asylum Processing Rule or APR) went into effect on May 31, 2022, changing the way DHS processes asylum cases for individuals in expedited removal. The APR creates a significantly condensed processing time and shifts some of the processing that used to happen at the southern border to interior cities.
Under the APR, asylum seekers who pass a credible fear interview will have their interview count as an asylum application before USCIS and have an Asylum Merits Interview (AMI) scheduled within 21 to 45 days. The asylum officer will be based out of a city designated by USCIS, not at the border. A list of the current cities is available here. If asylum is denied, then the person will be referred to an immigration court in the same city, and the immigration court is expected to resolve the case within two to four months.
While the Biden Administration paused this program in advance of the ending of Title 42, it resumed in mid-October 2023. Prior to the end of Title 42, the APR applied to detained single adults in specific detention facilities after they received a positive credible fear determination. As of mid-October 2023, new referrals to this program include FERM families.
This page provides background materials, resources, and ways to sign up to be referred a client going through this process by a nonprofit on the southern border.
Background and Updates
From DHS:
As of mid-October 2023, certain non-detained family units residing in or near one of the AMI cities listed below will be placed into the AMI process following a positive credible fear of persecution determination.
There are currently nine cities where AMIs take place, including: Annandale, VA/Washington, D.C.; Boston, MA; Chicago, IL; Los Angeles, CA; Miami, FL; New Orleans, LA; New York, NY; Newark, NJ; and San Francisco, CA. These cities have been chosen in part because each has robust legal orientation programs (LOPs) available for applicants to access as they prepare for AMIs with USCIS and potential additional proceedings before EOIR in cases where USCIS does not grant asylum.
Previously, detained single adults in certain detention facilities were being referred for the AMI process after receiving a positive credible fear determination. At this time, new referrals include certain non-detained families who meet other parameters, as described further below.
- Practice Alert: Nationwide Expansion of Family Expedited Removal Management
- Think Immigration: The Serious Flaw in the Biden Administration’s New Border Asylum Adjudication System – October 10, 2022
- Practice Alert: Biden Administration’s Asylum Processing Rule Is Now in Effect in the Courts and Asylum Offices of Seven Destination Cities - September 6, 2022
- Follow Litigation over the Asylum Process Interim Final Rule (updated as developments occur)
Led by Arizona and Texas, there are two different federal court cases against the Biden administration related to this APR. - USCIS Asylum Processing Rule Cohort Reports
- Immigration Impact: Biden’s New Asylum Rules Go into Effect on a Limited Basis – May 31, 2022
The American Immigration Council’s Aaron Reichlin-Melnick summarizes the APR and litigation in this blog post. - DHS Fact Sheet: Implementation of the Credible Fear and Asylum Processing Interim Final Rule –May 26, 2022
DHS summarized its initial plans to implement this rule in this fact sheet. - AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing APR – May 26, 2022
AILA and the American Immigration Council submitted a joint comment on this APR, which details our due process concerns. - Think Immigration: Fast Tracking Asylum at the Border will Undermine Due Process – May 23, 2022
AILA’s Amy Grenier summarizes the APR and AILA’s due process concerns in this blog post. - USCRI: Implementation of the New Asylum Rule
This resource Includes a flowchart of the new process under the APR. - Human Rights First: Asylum Process Rule Includes Welcome Improvements, But Critical Flaws Remain to Be Resolved – May 6, 2022
Human Rights First provides an in-depth fact sheet on the APR. - DHS and DOJ Interim Final Rule on Asylum Processing (87 FR 18078, 3/29/22)
AILA provides the complete APR as published in the Federal Register.
Opportunities to Take Action
- Sign up for the APR Asylum Merits Interview Attorney Referral List (with Migrant Center for Human Rights)
This opportunity is for attorneys interested in representing individuals who received a positive CFI determination and who practice in one of the following cities: Boston, Miami, New York, Newark, San Francisco, or Los Angeles. - Sign up for Remote RFR Evaluation and Representation (with Migrant Center for Human Rights)
This is a remote representation opportunity for those interested in representing individuals who were denied CFI in the request for reconsideration (RFR) process.- If you are a nonprofit that would like a copy of the APR Asylum Merits Interview or the Remote RFR referral list, please email Amy Grenier, Policy and Practice Counsel at AILA, at agrenier@aila.org or Sara Ramey, Executive Director of the Migrant Center for Human Rights, at sara.ramey@migrantcenter.org.
- Survey on USCIS Requests for Reconsideration of Negative Credible Fear Determinations (Human Rights First)
This survey is gathering information on how the Biden administration’s APR impacts asylum seekers who have been wrongly determined not to have a credible fear of persecution by the USCIS asylum office. Please fill out this survey if you have spoken with asylum seekers for whom you could not fill out a RFR due to the APR or for whom a request for reconsideration was wrongly denied. - Report a Trend/Issue Observed in the New Credible Fear and Asylum Process
Please report trends and issues that you see during this new APR process.
Practice Resources
- Biden’s Asylum Processing Rule – Three Months in, What Practitioners Need to Know – September 2022
Courtesy of National Immigration Project of the National Lawyers Guild - The New Asylum Rule on Credible Fear Screenings and Consideration of Asylum Claims by USCIS Officers FAQs for Immigration Practitioners - July 14, 2022
Courtesy of CLINIC - Guide to Interim Final Rule on Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers – July 11, 2022
Courtesy of Capital Area Immigrants’ Rights Coalition - EOIR Helpdesk Contacts
Courtesy of Acacia Center for Justice - Explainer Sheet: Understanding the Asylum Process in the United States After May 31, 2022
Available in English and Spanish
Courtesy of American Gateways - Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination – USCIS resource to the asylum merits interview
- Relevant Forms and documents given during this process Information About Credible Fear Interview Form M-444 (Rev. 5-31-2022)(ENGLISH) | (SPANISH)
Government document given to individuals facing a CFI:
- Relevant Forms and documents given during this process Information About Credible Fear Interview Form M-444 (Rev. 5-31-2022)(ENGLISH) | (SPANISH)