Federal Asylum Officers Blast New Biden Rule as Contrary to Legal, Moral Obligations

The Biden’s administration’s plan to severely restrict asylum approvals is drawing outcry from the Homeland Security Department employees who would implement the policy, with the staffers calling it unlawful and “contrary to the moral fabric of our nation.” 

Asylum personnel said they would have to violate their oaths to carry out the yet-to-be-implemented policy. They have voiced their concerns to U.S. Citizenship and Immigration Service leadership, who told them at a recent town hall that, assuming the proposal is finalized, they can either follow the guidance or find a new job. 

The union that represents USCIS employees—the American Federation of Government Employees Council 119—filed its complaints as a comment on the proposed rule DHS and the Justice Department put forward in February. To be able to apply for asylum, the rule would require immigrants who entered U.S. territory after first traveling through another country to have either applied for asylum elsewhere during their travels, made an appointment at a port of entry through a DHS app or received parole through a limited program. 

“At their core, the measures that the proposed rule seeks to implement are inconsistent with the asylum law enacted by Congress, the treaties the United States has ratified, and our country’s moral fabric and longstanding tradition of providing safe haven to the persecuted,” the union said in its comment, which was first reported by the Los Angeles Times. “Rather, it is draconian and represents the elevation of a single policy goal—reducing the number of migrants crossing the southwest border—over human life and our country’s commitment to refugees.” 

The union, which represents 14,000 USCIS employees, called on DHS and Justice to “immediately rescind” the rule. Its members are experts in the field and understand the impact of the new rule, which the group said lends particular credence to its concerns. Generally speaking, it argued, the law allows non-citizens to apply for asylum regardless of how they enter the country. Congress has made clear there is no requirement to go through a port of entry and current statute requires the “safe third country” provision apply only if those nations can maintain full and fair asylum systems. The rule, the council said, ignored that countries like Mexico and Guatemala often cannot offer reasonable protections. 

The proposal “rewrites the statue Congress enacted,” the union said. 

Michael Knowles, a long-time asylum officer, president of the AFGE local that represents USCIS employees in the Washington area and a spokesperson for the larger council, said some may view his members as being unfairly intransigent given civil servants’ responsibility to adapt as policies change. He said such a rationale does not apply when what is being asked of the employees is unlawful. 

“Unless you change the law, you can’t just make up a law,” Knowles said. “It isn’t political.” 

The council said in its comment that greater displacement of populations across the globe should be met with more opportunities for safe havens, which the U.S. could handle. The rule would raise the burden of proof during “credible fear” screenings, during which migrants typically have a difficult time producing evidence. Additionally, the app immigrants are supposed to use to set up asylum hearings—CBP One—has received criticism for ineffectiveness. 

The union argued the rule would also create a “stark reinterpretation” of the role of an asylum officer, who is typically responsible for just an initial screening and not the more complete adjudication Biden’s rule would require. The measure would create substantial additional burdens on the officers, the group added, as employees would have to weigh additional “factual complexities” that would make the process more time consuming. 

Knowles said the rule would divert limited staffing resources—USCIS employs only about 1,000 asylum officers—away from normal duties. The workforce’s primary concern, however, is their moral and legal obligations.

The rule “would force Council 119’s members to take actions that would violate their oath to faithfully discharge their duty to carry out the immigration laws adopted by Congress,” the union said. “It could make them complicit in violations of U.S. and international law.”

The rule has received significant criticism from a wide array of groups. The United Nations High Commissioner for Refugees said it would lead to violations of international law and urged the Biden administration to rescind it. The Biden administration has instituted several new initiatives as it gears up for the end of the restrictive border policy known as “Title 42,” which is expected to take place on May 11. DHS did not respond to a request for comment, but Secretary Alejandro Mayorkas said when the rule was released it was necessary to handle the unusually high numbers of migrants arriving at the border. 

“We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” Mayorkas said. 

The USCIS union repeatedly butted heads with the Trump administration, including when it implemented a similar rule known as the “transit ban.” It said in its comment on the new rule that Biden should not follow Trump down the same road. 

“The Trump Administration repeatedly sought to destroy the asylum system by erecting arbitrary barriers,” it wrote. “But that is not the path that accords with our nation’s deepest and most cherished values and traditions.”

Knowles said during the Trump years there was never a mass exodus of USCIS employees quitting in protest, but many of his colleagues quietly found other places to work. He anticipated a similar outcome if the rule goes into effect. 

“It gives us heartburn because it’s unlawful and it would require the asylum officer to actually break the law,” Knowles said.  “It gives the officers very few options other than to suck it up and do what they’re told.”