Cindy Sarpomaa-Nyarko

Associate Editor 

Loyola University Chicago School of Law, JD 2026

On May 13, 2024 the Department of Homeland Security (“DHS”) issued a notice of proposed rulemaking which would allow asylum officers (“AOs”) to consider the applicability of certain mandatory bars to asylum and statutory withholding of removal during credible fear screenings. The proposed rule has garnered significant support and opposition from several groups and organizations, but it marks an unprecedented change to the asylum-seeking process that could create additional barriers to relief for asylum seekers.

Expedited removal and credible fear interviews 

The expedited removal process was established in 1996 through the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). It is a process where DHS may quickly and summarily remove certain noncitizens without a formal hearing from an immigration judge (“IJ”). The expedited removal process generally applies to noncitizens who attempt to enter the U.S. either without entry documents or if they tried to enter through fraud or misrepresentation. The process has also been expanded to include individuals apprehended within 100 miles of the border and within 14 days of entry, as well as individuals inside the U.S. who cannot prove, to the satisfaction of an immigration officer, two years of continuous physical presence prior to their inadmissibility determination. The expedited removal process can be completed in as little as 24 hours. While the process allows for a swift removal without a formal hearing, exceptions exist, particularly for individuals claiming asylum who are subject to credible fear interviews.

If an individual subject to the expedited removal process expresses their intent to apply for asylum or indicates a fear of persecution, they will be subject to a credible fear interview. During a credible fear interview, an AO is tasked with determining whether the asylum seeker has experienced past persecution or has a credible fear of persecution on the grounds of “race, religion, nationality, membership in a particular social group, or political opinion.” If the AO determines the asylum seeker has established a credible fear of persecution, they may be eligible for asylum or statutory withholding of removal. To establish a credible fear of persecution, the asylum seeker must show that there is a significant possibility – considering the credibility of the statements made in support of their asylum claim – that they could establish asylum. Historically, congress has established that “significant possibility” is meant to be a “low screening” standard, requiring a showing of only a 10% chance of facing persecution. In conformity with congressional intent, DHS and the Department of Justice (“DOJ”) have previously rejected attempts to apply mandatory bars during the credible fear stage of the asylum-seeking process, claiming that doing so would be inefficient and contrary to the purpose of credible fear interviews.

While mandatory bars to asylum are applied during the asylum process, they are usually applied in the final stages of the application process during adjudication, instead of the early stages during credible fear interviews. The rule proposed by DHS in May 2024 would overturn years of precedent by permitting AOs to apply five bars which asylum seekers would have to overcome during a prompt credible fear interview, usually without the assistance of any legal resources. These five mandatory bars which AOs will be permitted to apply during the interview include:

• (1) Whether the asylum seeker participated in the persecution of any person on account of a protected ground
• (2) Whether the asylum seeker has been convicted of a particularly serious crime,
• (3) Whether the asylum seeker committed a serious nonpolitical crime outside the U.S.,
• (4)  Whether there are reasonable grounds to believe the asylum seeker is a danger to the security of the U.S., and
• (5) Whether the asylum seeker engaged terrorism-related activities

Under the proposed rule, AOs will have to consider if these bars apply when making their credible fear determinations. If they determine that a bar applies and a negative fear determination is made, the asylum seeker will be summarily deported.

Barriers to asylum or safeguards to public safety  

While some organizations support the proposed rule, many other organizations have submitted comments in opposition to the rule. For example, the Center for Immigration Studies (“CIS”) has submitted a comment in support of the rule, and they believe this rule could be strengthened by adding even more bars and requiring that AOs apply them, not just permitting them to do so. CIS takes the position that such deterrence policies are a necessary step to ensuring public safety and national security. Conversely, organizations, like the U.S. Committee for Refugees and Immigrants (“USCRI”) stress that the proposed rule would create more inefficiencies, contradicts congressional intent and precedent, and increases the risk of unjust refoulement (return of refugees to countries where they risk persecution). In the preamble of their proposed rule, DHS did provide justifications and explanations for the change. They claimed that AOs will be able to maintain the fairness and efficiency of the process by issuing negative fear determinations more “promptly” and using their best “judgment” and “discretion” to apply the bars more fairly. DHS also stressed the urgent need to implement this rule for purposes of ensuring “public safety.”

There is a tenuous relationship within the immigration system between maintaining an efficient and secure process while also protecting the opportunities for relief for individuals fleeing persecution from other countries. In its current form, the proposed rule lacks clarity on how AOs could apply these mandatory bars in a way that maintains the lower significant possibility standard which has been historically ensured. Simply depending on AO discretion and best judgment to apply these complex bars will not be a sufficient method of ensuring that asylum seekers aren’t unjustly receiving negative fear determinations. In addition, the proposed rule provides a particularly speculative prediction of just how the public would be safer by applying these bars at an earlier stage in the asylum process compared to a later stage when they can be more thoroughly investigated, and the asylum seeker will have a fair opportunity to seek legal counsel. The risks that arise from the premature application of these mandatory bars are too great to not provide the issue with sufficient consideration from a regulatory perspective.