Speaker Mike Johnson and other leaders are advocating for legislation that would tighten access to asylum by raising the legal standards for initial asylum screening at the border. The proposed changes, opposed by the American Immigration Lawyers Association (AILA), would make it more challenging for asylum seekers to obtain protection and could result in individuals being returned to unsafe conditions.

AILA argues that the change would complicate the effectiveness and efficiency in border processing.  Here is a brief overview of the current legal framework governing the asylum process called the credible fear interview.

Expedited Removal and Credible Fear

Expedite removal, authorized by Congress in 1966, allows the quick expulsion of individuals without valid entry documents at a port of entry or that are apprehended within 100 miles of a border within 14 days of entry. This process denies individuals the opportunity to appear before a judge to examine their case. A five-year re-entry ban is issued with an expedited removal.

To guarantee that refugees are not sent back to unsafe conditions, Congress mandates a preliminary screening, knowns as the Credible Fear Interview (CFI), for those in expedited removal. Conducted by a USCIS officer, the CFI assesses if there is a “significant possibility” for an asylum claim based on persecution for protected grounds, which are: race, religion, nationality, political opinion or membership in a particular social group. The interviews are done telephonically, usually lasting between 1.5 and 4 hours.

Department of Homeland Security reported that the CFI process has been reduced by one week, currently the time from referral for a CFI to determination is about 13 days, as opposed to the previous 21 days. CFI decisions are only reviewed by an immigration judge upon request form the individual. Individuals rarely have legal representation for their cases or familiarity with the U.S. law.

On May 2023, the Biden Administration introduced the Circumvention of Lawful Pathways (CLP) regulation to speed up asylum screenings at the border. The CLP raised the standard, referred as “reasonable possibility”, for Credible Fear Interview (CFIs), resulting in increased use of expedited removal by the Department of Homeland Security (DHS).

The overall credible fear pass rate dropped from 85 percent to 59 percent, and under the higher standard, positive credible fear findings decreased by 32 percent, with only 53 percent establishing credible fear. The CLP is scheduled to expire on May 11, 2025.

Credible Fear Legal Standard

Congress planned that the legal standard for credible fear interviews (CFIs) to be lower than for granting asylum, recognizing that CFIs are a rapid preliminary stage. This allows the Department of Homeland Security (DHS) to quickly assess and potentially remove individuals with limited review.

However, Congress acknowledged the risk of returning individuals with valid asylum claims to their country of persecution due to the expedited process. Proposals to raise the legal standard for CFIs to a “more likely than not” standard may disrupt the balance and potentially pose a threat to people’s lives.

People undergoing a Credible Fear Interview (CFI) often lack legal representation, with only one percent being represented in the process. The absence of right to an attorney during the interview and review, as well as limited opportunities for consultation while detained, individuals are at a disadvantage.

The expedited nature of the CFI process is further complicated by the fact that detainees must narrate their experiences telephonically to an asylum officer within a few days, offering little time for recovery after a trauma and preparation of evidence.

The CFI process’s legal standard, which focuses on the likelihood of an individual to establish an asylum claim, is different from the more complex analysis required for a final asylum determination. The proposed “more likely than not” standard, the highest in asylum law, is rarely applied and only in specific cases outside expedited removal and cases where asylum eligibility is barred.

CBP LAX procedures [Customs and Border Protection]

Abandonment of LPR Status and Re-entry Permits

According to 9 FAM 402.2-4(B)(10), a Lawful Permanent Resident (LPR) might require a visa more quickly than a returning resident visa allows. For instance, if an LPR employed by a U.S. corporation is temporarily assigned abroad for over a year, they can be issued a Nonimmigrant Visa (NIV) for urgent business meetings without surrendering Form I-551. While LPRs traveling on a B2 visa/ESTA may not automatically be considered as abandoning their status, an absence exceeding 180 days may create a presumption of abandonment.