Raising the Legal Standard
Another proposal for restricting asylum claims is to raise the legal standards for assessing the fear of persecution. Under current law, if someone arrested at the border asks for asylum, they are given a screening interview by an asylum officer to determine whether their fear of persecution is “credible.” If the asylum officer finds credible fear, the immigrant is released into the country pending a hearing. At the hearing, an immigration judge will use the higher standard of a “well-founded fear” to determine whether to grant asylum. The difference in standards was included in the law to avoid mistakenly deporting someone with a significant chance of ultimately winning asylum.
In practice, especially in recent years, the current “credible fear” standard at the border has meant that almost everyone who asks for asylum meets this preliminary standard, even though historically most fail to obtain asylum before a judge using the “well-founded fear” standard. By raising the screening standard closer to the final legal standard, fewer cases would be referred to full asylum hearings system before an immigration judge, which currently faces a backlog of 3.7 million cases.
The Case ForÂ
Proponents of raising the legal standard at the screening interview argue that the unreasonably low current standard is a primary reason the process has been extensively abused by people who have no real chance of winning asylum. They argue that screening people at a higher standard will deter unlikely and frivolous claims. Advocates suggest this will prevent the asylum process at the border from being abused by people seeking entry to the US who do not have a valid visa to come here.
The Case Against
Opponents of raising the screening interview legal standard argue that US obligations under international law prohibit us from deporting someone to a country where they will face persecution. Increasing the screening standard would make this more likely. They argue that the interviews are conducted soon after someone has had the often-traumatic experience of crossing the border. They also observe that the screening interviews do not allow the migrant to build their full case as they can in immigration court proceedings, including by bringing documents, expert witnesses, and other evidence to support their asylum claims. Consequently, they argue, the same standard of proof should not apply to both initial interviews and formal court hearings.