“Don’t Tell Me About Your Fear”: Elimination of Longstanding Safeguard Leads to Systematic Violations of Refugee Law

As part of a June 2024 asylum ban rule, the Biden administration eliminated a safeguard that had been in place for nearly 30 years to protect people seeking asylum from being summarily deported without a chance to present their asylum claim. This provision, included in an Interim Final Rule (IFR) titled “Securing the Border” that went into effect immediately on June 5th, eradicates a key requirement for immigration officers to ask people arriving in the United States about their fear of return.

In just two months, this change has had disastrous consequences. Based on countless interviews conducted by our legal service organizations with asylum seekers impacted by this policy since it was implemented in June, immigration officials are failing to comply with U.S. and international refugee law and summarily deporting people who fear return without a screening on their asylum claim (referred to as a “credible fear interview,” or CFI). The effects of the new policy include:

• Immigration officers are removing people from the United States without a CFI even when they are required by law to be referred for a CFI because they express fear of return, including survivors of gender-based violence, people whose family members were assassinated, LGBTQI+ people, individuals with visible marks and bruises from attacks, and people fleeing death threats and other harms with young children.
• Many people who are detained and processed under expedited removal are not given an opportunity to express their fear of return and are summarily deported without a CFI, with immigration officers routinely telling them they are not allowed to speak, that there is no more asylum, and that they are being deported.
• Elimination of the safeguard is fueling family separation, where family members are arbitrarily removed from the United States without a CFI while their loved ones are referred for a CFI, including where their asylum cases could have been processed together.

The IFR includes other provisions that also increase the risk of returning (refouling) refugees to harm, including banning the majority of people who arrive between ports of entry at the U.S.-Mexico border from being granted asylum and imposing a higher standard of proof during the CFI process to make it more difficult to access lesser forms of protection (withholding of removal and protection under the Convention against Torture).

A joint report issued in July 2024 documents the consequences of the first six weeks of implementation of the IFR.

U.S. agencies should immediately rescind the IFR, including its elimination of the requirement to ask about fear, and Congress should reject any attempts to enact such a provision into law.