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

• Published in: Howard law journal 2023-04, Vol.66 (3), p.571-642
• Main Authors: Schräg, Philip G, Ramji-Nogales, Jaya, Schoenholtz, Andrew I
• Format: Article
• Language: English
• ISSN: 0018-6813; 1931-0692

Asylum seekers must obtain representation very quickly even though the government does not fund counsel and few lawyers ojfer free or low-cost representation. [...]the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available - a nearly impossible task in the time frames provided by the new rule. [...]the new rule clashes with every state s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. [...]in recent years, the "credible fear" standard has been applied more strictly. Since it began, the expedited removal process has been criticized by scholars for prioritizing speed over fairness and accuracy.5 Other scholars have raised concerns with the ways in which expedited removal "effectively block[s] access to the immigration courts. In 1951, the United Nations (UN) Convention Relating to the Status of Refugees laid the foundation of the contemporary international refugee law framework.8 The United States bound itself to uphold the legal obligations set out in that treaty by ratifying the 1967 UN Protocol Relating to the Status of Refugees, which incorporated the refugee definition and mandatory protections of the Refugee Convention.9 More than a decade later, Congress passed the Refugee Act of 1980, which adopted the Convention's nition of a as domestic law: an individual who was unwilling or unable to return to their home country because of their well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.10 Another decade passed before the executive issued regulations to systematize the asylum process.11 A. Creating the Asylum Adjudication System Although the 1980 Act provided that refugees could seek asylum in the United States, it did little to establish procedures for adjudicating claims.