RAISING THE LEGAL STANDARD

One proposal to restrict asylum claims is to raise the legal standards for assessing fear of persecution. Under current law, if someone apprehended 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 applicant 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. 

Under this proposal, the screening interview standard would be “reasonable fear,” a legally defined standard that is higher than the current “credible fear” but still lower than the “well-founded fear” standard used by immigration judges.

The Case For

Supporters of raising the legal standard argue that the current standard is so low that the process has been extensively abused by people with no real chance of winning asylum. They cite the fact that more than 75% of those screened met the “credible fear” standard until the administrative tightening that began in the second half of the Biden administration and continued more sweepingly under the second Trump administration. In contrast, until recently, approximately 60 percent of those claims were ultimately denied by an immigration judge. Proponents argue this gap shows the screening standard is set too low.

Proponents argue that an initial screen so much less stringent than the final standard undermines the rule of law. They contend that violent cartels have exploited this lax screening for profit, coaching migrants to claim asylum simply to gain entry. Clogging the system with invalid claims also hurts legitimate refugees fleeing actual persecution by delaying their protection. The immigration court backlog now approaches 3.75 million cases, with roughly 2.4 million of those being asylum cases. Applicants wait an average of more than four years for their cases to be heard. 

Advocates argue that “reasonable fear” strikes the right balance between preventing frivolous claims and ensuring that those with a reasonable claim have a chance before an immigration judge. They note that this was the standard adopted by the 2024 bipartisan Senate border bill — evidence that it is a sound substantive reform with bipartisan potential. Supporters also argue that putting this in legislation would establish a more consistent standard and avoid the unpredictable changes of recent years.

The Case Against

Opponents of raising the screening standard argue that US obligations under international law prohibit deporting someone to a country where they will face persecution, and that raising the standard would make this more likely. Beyond legal obligation, they argue that erring on the side of not sending people into genuine danger is the right thing for a compassionate nation to do. Opponents also argue that it is unfair to raise the legal standard for screening interviews that are conducted soon after the often-traumatic experience of crossing the border.

Opponents challenge the claim that the system has been overrun by people with no real chance of winning asylum. They cite the same evidence as proponents but argue that the approximately 40 percent of claims that are granted confirms that the current standard identifies many people with legitimate claims, not waving through frivolous ones. They further argue that the multi-year backlog before immigration judges is driven not by the screening standard but by too few asylum officers and judges to handle the volume. The right fix, they argue, is investing in adjudication capacity.