DHS’S PROPOSED RULE TO ALLOW STATUTORY BARS TO ASYLUM IN INITIAL FEAR SCREENINGS WILL HAVE A DISCRIMINATORY IMPACT ON BLACK ASYLUM SEEKERS 

May 9, 2024
Contact: Paige Censale, pcensale@haitianbridge.org 

San Diego, California – On May 9, 2024, the Department of Homeland Security (DHS) announced a proposed rule and other measures to “enhance security” and streamline the asylum process that would chip away at asylum seekers’ right to a fair process and legal representation. According to Guerline Jozef, Co-founder and Executive Director of Haitian Bridge Alliance, “Given the disproportionately low numbers of Haitian and other Black asylum seekers in initial fear screenings at the border, the Haitian Bridge Alliance demands the Biden administration address the anti-Black bias and discrimination in fear screenings rather than arbitrarily making it even harder for them succeed. Our people are suffering from injustice already when they are only trying to seek protection, this rule makes it even worse.”

Congress intended to apply “a low screening standard,” to credible fear screenings to ensure that people seeking refugee protection in the United States have an opportunity to apply for asylum and are not summarily deported to persecution or torture. Even before DHS’s new proposed rule, these screenings are inherently flawed resulting in erroneous negative determinations and deportations of refugees without access to the asylum process, with a disparate impact on Black asylum seekers.

DHS’s proposed rule would allow asylum officers to apply statutory bars to asylum at the initial fear screenings (credible fear interviews or CFIs), which generally take place within days of apprehension. The rule would also reinforce the Circumvention of Lawful Pathways Rule and allow asylum officers to decide an asylum seeker’s fear of future persecution during the CFI, including whether they could reasonably relocate to another part of the country of feared persecution. Currently, these issues are considered by an immigration judge at the merits phase of the asylum process with more robust appeal procedures and when asylum seekers have more opportunity to seek legal advice,  retain an attorney, and secure their release from detention so that they can defend themselves in peace and freedom.

“HBA attorneys have represented Black asylum seekers who have wrongly had these bars applied to them,” said Nicole Phillips, Legal Director at Haitian Bridge Alliance. “One man reached out to us from a detention center in Texas. An asylum officer accused him of supporting terrorism. ICE attorneys were attempting to apply the terrorism-related statutory bar to him, and he was set to be removed. We took his case and won his freedom, with a judge finding that the government didn’t have sufficient evidence on the terrorism charge. Under this new rule, HBA never would have had a chance to represent him, this man would have never gotten a chance to have an attorney, and he would have been deported back to a place that the Board of Immigration Appeals determined had persecuted him. This gentleman is just one of many Black asylum seekers from an African country who have unjustly had these bars applied to them, and this proposed rule will do even more discriminatory damage than is happening already.”

Historically Haitian and other Black asylum seekers have disproportionately lower rates of establishing credible fear in CFIs. In Fiscal Years 2016-2021, the positive credible fear rate for Haitian asylum seekers was 44.6%, compared to the 69.9% average for other countries. They also have a harder time reversing a negative CFI decision.  In Fiscal Years 2021-2023, CFI  findings of no fear were overturned by immigration judges in 27% of Haitian cases, compared with 50% for Russians, 55% for Bangladeshi, 48% for Venezuelans, and 45% for Cubans. Similarly, asylum grant rates for Haitians are significantly lower than average: 27% for Haiti, 77% for Venezuela, 88% for Russia, 68% for India, and 55% for Cub, even though Haiti’s security and humanitarian situations have been considered cataclysmic by the United Nations.

Lastly, asylum seekers from Black majority countries had a significant, disproportionate rise in negative credibility findings, meaning asylum officers were more likely to find Black asylum seekers to be lying. 

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