DHS proposes new rule to use classified info early in asylum process

The Department of Homeland Security (DHS) has proposed a new rule to enhance border security by allowing the use of classified information earlier in the asylum process. This Notice of Proposed Rulemaking (NPRM) aims to expedite the removal of migrants who pose national security or public safety risks.

Federal law prohibits granting asylum to individuals who pose such risks, including those convicted of serious crimes, involved in persecution or deemed threats to U.S. security.

Currently, asylum eligibility determinations are made later in the process. The proposed rule would permit asylum officers to consider classified information during initial credible fear screenings, conducted shortly after a migrant is encountered. This change would allow for quicker identification and removal of threats.

“The proposed rule would allow asylum officers to issue denial of claims within days after an individual is encountered when there is evidence that the individual is barred from asylum because of a terrorism, national security or criminal bar,” the DHS statement reads.

Under the new policy, classified information that suggests an individual may threaten national security or public safety can be actively used in their immigration case. Asylum officers determining a migrant’s asylum eligibility and prosecutors seeking deportation will now have an easier process to access and share classified information. This change should help prevent the release of potential security threats and allow for rapid decisions on many asylum claims.

“The proposed rule we have published today is yet another step in our ongoing efforts to ensure the safety of the American public by more quickly identifying and removing those individuals who present a security risk and have no legal basis to remain here,” Secretary of Homeland Security Alejandro Mayorkas said. “We will continue to take action, but fundamentally, it is only Congress that can fix what everyone agrees is a broken immigration system.”

This policy shift follows the case of Mohammad Kharwin, an Afghan migrant on the terrorist watchlist, who was released by a Texas immigration judge after Immigration and Customs Enforcement prosecutors withheld classified information due to its sensitivity.

Kharwin, suspected of connections to terrorism, was initially detained in 2023 without sufficient biometric data to confirm his watchlist status. After living freely in the U.S. for over a year, he was re-arrested following public reporting of his case.

Meanwhile, the Biden administration is addressing challenges with a heavily burdened immigration system. Earlier this month, senior officials introduced new rules to expedite asylum claims for single adults.

The DHS and the Department of Justice are establishing an expedited docket at ports of entry for migrants arriving alone and surrendering to border authorities. The docket aims to quickly assess whether individuals have the legal right to remain in the U.S., potentially leading to quicker removals for those who do not qualify.

As of April, over 3 million cases are pending in immigration courts across the country. With around 600 immigration judges available, the average processing time for an asylum case is nearly three years.