Once again, the Biden Administration fails immigrants by falsely equating criminality with asylum and reverting to Trumpian tactics to ramp up deportations. Again, we are disappointed in the lack of leadership on this issue from the President and his continued attacks on our neighbors, clients, and communities.

On Thursday, May 9th, the Department of Homeland Security (DHS) proposed a new rule that will allow the immediate and erroneous removal of people seeking safety by giving asylum officers new and dangerous authority to decide who is a “criminal” and who is a “national threat.” Allowing front-line asylum officers to make this determination with little guidance and often no counsel for the asylum seeker is a blatant attempt to paint the Administration as hard on immigration at the expense of real people and the rule of law.

In the current system, a judge decides if a person with a credible fear of torture or persecution in their home county is nevertheless barred from asylum due to past behavior. Changing this to allow asylum officers—during initial screenings—to use their own discretion to pre-terminate a viable asylum claim will breed even more racist and xenophobic biases within the screening process and prevent lawful access to safety.

“Whether someone’s criminal history bars them from asylum is a complicated legal analysis best suited for a judge, and not an initial screener,” said Eric Lopez, Esq., Deputy Program Director in CAIR Coalition’s Detained Adult Program. “It requires the asylum seeker to prepare complex legal arguments to rebut any allegations of statutory bars to asylum. This is a near impossible expectation of anyone who’s fled danger, travelled precariously to the Southern Border and has been incarcerated by immigration authorities.”

The current credible fear process is deeply flawed. Right now, an asylum officer conducts what is known as a “credible fear interview” hours or days after an asylum seeker reaches the border. These interviews happen while the person is in DHS custody. There’s no meaningful opportunity to seek legal representation or present evidence. The consequence of this stark situation is that immigrants with viable asylum claims might be deported back to danger and potentially death because they were denied the opportunity to pursue their claim before a judge.

The Biden administration’s new proposed rule only compounds these inhumane procedures and introduces new ones. It allows asylum officers to conduct initial screenings to assess whether the person triggers even more complicated legal factors related to certain criminal convictions, allegations of certain criminal conduct, or even claims as vague as “dangerousness.” These claims require nuanced and complicated legal analysis that confounds immigration lawyers, DHS trial attorneys, and immigration judges.

This proposed exclusionary policy is at odds with the fact that seeking asylum is a human right for all people under U.S. and international law. CAIR Coalition urges the Biden Administration to stop using immigrants as political pawns and find humane solutions to lawful pathways for immigrants seeking safety.