Earlier this week, a new rule went into effect, which permits the Asylum Office to send certain affirmative asylum applicants to Immigration Court without an interview. The purported justification for the rule is “to reduce the backlog in the asylum system,” and–in the double-speak of USCIS–to “protect individuals who genuinely fear persecution and… help ensure that resources are directed to the timely adjudication of those claims instead of to those seeking to use the system as a loophole.”

I suppose denying cases without bothering to adjudicate them will save time. It will also reduce the backlog, at least the backlog at the Asylum Office. But shifting tens of thousands of cases to Immigration Court will increase the backlog there.

Here, we’ll take a look at what the rule says, how it might impact affirmative asylum seekers, and what you can do about it.

In some ways, it is easier to describe who is not affected by the rule. There are two broad classes of people who are not affected. One category is clearly defined. Anyone who is lawfully present in the United States is unaffected by the rule. Put another way, if you are in the U.S. and you are still in lawful non-immigrant status, such as B, F-1, H1b, L, etc., your asylum case cannot be denied without an interview.

The other category of unaffected asylum seekers is a little trickier. The new rule "does not impact USCIS interviews for cases where the alien is not barred from applying for or receiving asylum, not ineligible on the merits of the claim, and may merit a grant as a matter of discretion." In other words, an asylum seeker is not affected by the rule where (1) the applicant is not barred from asylum due to the one-year filing bar, a safe third country agreement, a criminal issue or due to some other bar to asylum; (2) the application states a claim for asylum, meaning that the non-citizen has expressed a fear of return based on a protected ground; and (3) the person would not be denied asylum as a matter of discretion due to, for example, bad moral character or other negative factors. People who satisfy these requirements will not have their case denied and sent to Immigration Court without an interview.

These different requirements raise a few concerns, such as: How does the Asylum Officer determine that a bar applies? For the one-year bar, will the AOs simply refer to court every case where the person filed after a year in the United States? Or will they examine evidence for an exception to the one-year bar? We don't know.

Another worry is the safe third country bar. The new rule describes this bar as follows: "an alien cannot apply for asylum if he or she can be removed, pursuant to a bilateral or multilateral agreement, to a country in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion and where the alien would have access to a full and fair procedure for determining a claim to asylum." The Trump Administration has been entering agreements with many different countries to accept our asylum seekers. So far, this has only affected people in Immigration Court. Whether these agreements will be used to deny asylum at the Asylum Office remains to be seen. If so, these agreements should only apply to people who entered the U.S. on or after November 19, 2019. If you entered the country before that time, the safe third country bar would generally not apply to you.

A third issue is whether the asylum application states a claim for protection. In other words, does the I-589 form describe any past harm and your fear of future harm? Does it explain why you suffered past harm and fear future harm? If your I-589 states only that you will submit an affidavit in the future, or if it contains very few details about what happened and why, it may not be sufficient and could be dismissed. What's particularly unfair here is that asylum applications that were perfectly acceptable at the time of filing may not be adequate today.

According to the Washington Post, under the new rule, as many as 444,000 cases could be transferred from the Asylum Office to Immigration Court. That represents nearly a third of all cases pending at the Asylum Office.

If you are worried about dismissal, what can you do?

First, review your application. If it seems incomplete or inadequate, you may want to submit evidence or a more detailed written statement explaining why you need asylum. For asylum seekers who filed online, this is easy, but for everyone else, they will need to mail a hard copy of any new information to the local Asylum Office and hope the new filing gets matched with their case.

Even if you do not submit all your evidence now, it is a good idea to gather your evidence and have it ready, in case you get scheduled for an interview.

Also, if you have not done so, try to pay the Annual Asylum Fee. The system will not always accept payment, but if not, take a screen shot of the rejection so you have a record of your efforts.

Finally, remember that even if your case is referred to Immigration Court under the new rule, it is still possible to win asylum before an Immigration Judge. While the situation is more difficult today, asylum seekers who gather evidence and address legal issues can maximize their chances for success at the Asylum Office or in court.
Originally posted on the Asylumist: www.Asylumist.com