The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem

In 2022, the Biden administration implemented sweeping changes to the American asylum process designed to increase the speed, efficiency, and effectiveness of the entire asylum system. One important Biden reform was to give asylum officers, who possess special training on political conditions in sending countries, the power to make initial determinations of eligibility for asylum. Written by three law professors, the report reviews the history of asylum adjudication dating back to the Refugee Act of 1980, which was largely silent on operational procedures for asylum cases.  The authors commend various aspects of the new asylum rule issued by the Biden administration, but they also find a serious flaw in the new process, namely the short period of time in which asylum seekers who present themselves or are apprehended at the southern U.S. border must find counsel and meet arduous evidentiary standards. The new rule also “traps asylum lawyers in an ethical and moral quandary. They cannot possibly explain the relevant law and legal process to their clients, collect the necessary documentation, and prepare testimony from their clients and fact and expert witnesses within the draconian time frames required by the regulation.”  The authors make a number of recommendations for further reforms to the system, including a time frame of five months for asylum seekers to secure counsel and meet evidentiary standards.

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