TESTIMONY OF 

Andrew Davidson

Acting Deputy Director

U.S. Citizenship and Immigration Services 

U.S. Department of Homeland Security

 

For a Hearing 

 

BEFORE 

 

United States Senate

Committee on Homeland Security and Governmental Affairs

Subcommittee on Government Operations and Border Management

 

ON 

“After Apprehension: Tracing DHS Responsibilities after Title 42” 

 September 6, 2023

Washington, DC
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Introduction

Chair Sinema, Ranking Member Lankford, Members of the Subcommittee, thank you for the 

opportunity to appear before you today, together with my colleagues from U.S. Customs and 

Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), to discuss how 

the Department of Homeland Security (DHS) processes noncitizen encounters at the Southwest 

Border (SWB). My name is Andrew Davidson, and I am the Acting Deputy Director of U.S. 

Citizenship and Immigration Services (USCIS). My testimony will describe the role of USCIS at 

the Southwest Border, and particularly how USCIS processes noncitizens in CBP and ICE

custody and has operationalized the Circumvention of Lawful Pathways (CLP) rule. 

Background

USCIS administers the nation’s lawful immigration system, including the adjudication of 

affirmative asylum claims and applications for refugee status. USCIS employees work shoulderto-shoulder with their ICE and CBP colleagues—from conducting protection screening 

interviews at DHS facilities to coordinating on national security and public safety issues. USCIS 

has a proud history of providing immigration benefits to eligible individuals from all over the 

world. These benefits support the fundamental values and needs of our nation, be they economic, 

humanitarian, or otherwise in the public interest. USCIS delivers these benefits while being ever 

vigilant for those who seek to undermine the integrity of our immigration system—or worse, 

those who seek to do us harm. USCIS is only able to accomplish its complex and vital mission 

through the efforts of its thousands of dedicated public servants who each day administer a 

complex immigration system fairly and professionally. 

Asylum and Credible Fear Claims

For more than a decade, the steadily rising influx of migrants across the Southwest Border has 

resulted in significant increases in apprehensions and the number of noncitizens placed into the 

expedited removal process. USCIS screens individuals for credible fear in some situations as part 

of the expedited removal process and plays an important role in ensuring that potential asylees or 

victims of torture are not improperly returned to their home countries in contravention of our 

laws and those who are found ineligible are expeditiously removed. Our specially trained asylum 

officers conduct screening interviews for noncitizens who express a fear of return or otherwise 

express a fear of persecution or torture or indicate an intention to apply for asylum during the 

expedited removal process. The screening interview is conducted in order to determine whether 

the noncitizen has a credible fear of persecution or torture. Noncitizens who meet the credible 

fear threshold may either have their asylum applications retained by USCIS for an Asylum 

Merits Interview or may be placed in removal proceedings in immigration court, where they can 

apply for asylum or other relief or protection. Individuals found not to have a credible fear of 

persecution or torture may request review of that finding by an immigration judge. 

Over the last 10 years, as irregular migration to the Southwest Border has increased, the number 

of credible fear referrals to USCIS has climbed sharply as well. Approximately 35,000 detained 

credible fear cases were referred to USCIS in Fiscal Year (FY) 2013; USCIS has seen the 

number of detained credible fear cases referred more than triple to approximately 107,000 so far 

in FY 2023 as of August 11, 2023. About 51,000 of those cases have been received since May 

12, 2023, after the expiration of the Centers for Disease Control and Prevention’s Title 42 public 
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health order and the return to processing all noncitizens under longstanding Title 8 immigration

authorities. USCIS has pursued a number of strategies to address this increased caseload, 

including: 

• Significantly expanding asylum officer staffing from 283 authorized positions in FY 2013

to 1,128 authorized positions in FY 2023;

• Maintaining remote interview and adjudication capability that enables asylum officers to 

process credible fear cases from any location;

• Bolstering credible fear staffing this fiscal year by providing refresher training on credible 

fear processing to several hundred USCIS employees who had been previously protection 

trained, thereby increasing the pool of credible fear-trained personnel;

• Deploying over 340 of these employees from other parts of USCIS to interview the 

credible fear caseload to supplement our permanent asylum officer corps ; and

• Most recently, cultivating a new volunteer pool of current USCIS employees interested in 

conducting credible fear screening, 275 of whom are currently engaged in specialized 

training scheduled to conclude on September 6, 2023, at which time they will join the 

force of credible fear-trained personnel.

Our ability to process credible fear claims in a timely manner saves valuable DHS detention 

resources and enables the entire expedited removal process to operate more efficiently. USCIS 

remains strongly committed to supporting the government-wide response to the migration flows 

on the Southwest Border, including ensuring those who seek protection are provided the 

opportunity to have those protection claims heard.

At the same time, USCIS remains committed to detecting and deterring immigration fraud, 

including within asylum and humanitarian benefits. The Fraud Detection and National Security 

Directorate (FDNS) has embedded teams at each of the 11 asylum offices. These local teams 

conduct pre-interview screening, provide onsite consultation to asylum officers interviewing 

applicants, analyze trends and large-scale fraud schemes, and serve as local liaisons to 

interagency law enforcement partners. Many local FDNS teams also include an intelligence 

research professional to monitor trends and conduct specialized analysis. USCIS continues to 

lead an interagency asylum fraud working group with partners from ICE’s Homeland Security 

Investigations, CBP, Department of Justice, and Department of State. In recent years, USCIS has 

supported multiple successful criminal prosecutions and convictions involving asylum fraud, 

further demonstrating the Department’s commitment to ensuring the overall integrity of the 

immigration system.

Post-Title 42 Order Processing

Over the past few months, DHS has implemented new measures to humanely manage the 

Southwest Border by enforcing our immigration laws while expanding safe, orderly, and lawful 

immigration pathways. This comprehensive approach was outlined in the DHS six pillar plan

issued in April 2022, and updated in December 2022 and most recently in May 2023. One of the 

enforcement measures implemented to support these pillars is the enhanced use of expedited 

removal. To ensure that expedited removal – including the credible fear process – is carried out 

fairly, efficiently, and quickly, USCIS worked with ICE and CBP to digitize parts of the credible 

fear processes and reallocated staffing resources so that hundreds of additional personnel were 
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available to process credible fear interviews. Additionally, certain noncitizen populations are 

now processed for expedited removal while they are in CBP or ICE facilities within days or just 

a few weeks after they were encountered. Through these measures, DHS is able to provide relief 

more quickly to those who are eligible and remove those who are not. Through these measures, 

DHS is able to provide relief more quickly to those who are eligible and remove those who are 

not.

The credible fear screening interview and standard is the same whether the noncitizen is in CBP 

or ICE custody. If the noncitizen receives a positive credible fear determination, they are issued a 

Notice to Appear (NTA) in immigration court for removal proceedings. Alternatively, under the 

Credible Fear and Asylum Processing Interim Final Rule, USCIS also has the option of retaining 

certain noncitizens’ application for asylum and scheduling the noncitizen for a second interview, 

known as an Asylum Merits Interview, to determine whether the noncitizen is eligible for 

asylum. If the credible fear determination is negative, the noncitizen may request review of the 

decision by an immigration judge. If the noncitizen does not elect to have their determination 

reviewed or if the immigration judge affirms the asylum officer’s decision, the noncitizen is 

subject to expedited removal and ultimately removed. If the immigration judge vacates the 

asylum officer’s decision, the noncitizen may proceed either before USCIS or in removal 

proceedings before an immigration judge with their asylum application. If an NTA is issued and 

the noncitizen is placed in removal proceedings, the immigration court will make the final 

determination on the noncitizen’s eligibility for asylum, withholding of removal, or other relief.

Certain nationalities, in this case nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV),

who are referred to USCIS for a credible fear interview while in Border Patrol custody are 

informed of legal pathways available to nationals of CHNV countries who are outside of the 

United States and meet certain eligibility requirements. These potentially eligible noncitizens are 

then asked if they would like to voluntarily withdraw their application for admission and return 

to Mexico in order to retain their ability to apply for these parole processes. If the noncitizen 

states they would like to withdraw their application for admission, the asylum officer stops the 

interview, administratively closes the case, and informs CBP of the noncitizen’s request. If the 

noncitizen decides to not withdraw their application for admission, the asylum officer continues 

with the credible fear screening.

Processing under the Circumvention of Lawful Pathways Rule

On May 12, 2023, the Circumvention of Lawful Pathways (CLP) rule took effect. This rule

encourages migrants to use lawful, safe, and orderly processes and pathways to enter the United 

States and imposes a rebuttable presumption of ineligibility for asylum on certain noncitizens 

who fail to do so. The presumption applies to noncitizens who arrive at the Southwest land 

border and adjacent coastal borders, meaning any coastal border at or near the U.S.-Mexico 

border reached by an individual after traveling from Mexico and circumventing the U.S.-Mexico 

land border. Noncitizens who entered the United States on or before 11:59 p.m. Eastern Time on

May 11, 2023, are not subject to the CLP rule. Mexican citizens and nationals as well as stateless

habitual residents of Mexico also are not subject to the CLP rule, as the rule requires travel

through a third country for the presumption of ineligibility to apply.

The CLP rule provides exceptions for a noncitizen from the presumption of asylum ineligibility 

and allows the noncitizen to rebut the presumption of asylum ineligibility by demonstrating 
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exceptionally compelling circumstances. The rule specifically excepts unaccompanied children 

from the presumption of ineligibility for asylum. When a noncitizen attends their credible fear 

interview with USCIS, the asylum officer will assess whether the noncitizen is subject to the 

CLP rule and, if so, whether an exception applies, or the presumption of asylum ineligibility can 

be rebutted. 

Specifically, if the noncitizen is not subject to the rule or if an exception applies, USCIS will 

continue with a credible fear screening, applying the significant possibility standard. If a 

noncitizen is subject to the rule and an exception does not apply, they are presumed ineligible for 

asylum. The noncitizen then has an opportunity to rebut this presumption of asylum ineligibility, 

based on exceptionally compelling circumstances. If they rebut the presumption of ineligibility 

for asylum under the CLP rule, the asylum officer will conduct the credible fear interview using 

the significant possibility standard, which includes an exploration of whether the applicant has a

credible fear of persecution or torture for all countries of nationality and all designated countries 

of removal prior to the issuance of a credible fear determination. 

If the noncitizen is unable to establish an exception or rebut the presumption of ineligibility for 

asylum, their fear claim is assessed using the reasonable possibility standard, which requires a

higher standard of proof. The reasonable possibility standard includes screening the noncitizen 

for fear of persecution or torture in the designated country or countries of removal, if any are 

listed, to determine whether they would be eligible for statutory withholding of removal or 

protection under the regulations implementing U.S. obligations under Article 3 of the 

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

If no designated countries of removal are listed, then the noncitizen is screened for their country 

of citizenship or nationality. The designation of a country of removal is made by our DHS 

colleagues in CBP or ICE and provided to USCIS at the time of the referral.

The Circumvention of Lawful Pathways rule applies to noncitizens who arrive at the Southwest 

land border and adjacent coastal borders, meaning any coastal border at or near the U.S.-Mexico 

border reached by an individual after traveling from Mexico and circumventing the U.S.-Mexico 

land border. As noted above, noncitizens are not subject to the CLP rule if the noncitizen 

1) entered the United States on or before May 11, 2023, 11:59 P.M. Eastern Time; 2) did not 

enter the United States from Mexico across the Southwest land border or adjacent coastal border; 

or 3) is a Mexican citizen, national, or stateless individual who last habitually resided in Mexico, 

because the rule requires travel through a third country. During implementation of the CLP rule, 

37,075 of the 51,224 credible fear cases USCIS completed between May 12, 2023, and August 

11, 2023, have been subject to the rule. Of those subject to the rule:

• In 1,071 cases an exception to the CLP rule was established, resulting in 815 cases 

(76.1%) receiving a positive determination at the significant possibility standard, 248 

cases (23.2%) receiving a negative determination at the significant possibility standard, 

and 8 cases (0.8%) were administratively closed.

• In 4,292 cases the presumption of ineligibility for asylum was rebutted, resulting in 3,698 

cases (86.2%) receiving a positive determination at the significant possibility standard, 

577 cases (13.4%) receiving a negative determination at the significant possibility 

standard, and 17 cases (0.4%) were administratively closed.

• In 31,712 cases the presumption of ineligibility for asylum under the CLP rule was 

applied, resulting in 16,635 cases (52.5%) receiving a positive determination at the 
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reasonable possibility standard, 14,937 (47.1%) receiving a negative determination at the 

reasonable possibility standard, and 140 (0.4%) were administratively closed.

On August 3, 2023, the U.S. Court of Appeals for the Ninth Circuit issued a stay of the U.S. 

District Court for the Northern District of California’s order in East Bay Sanctuary Covenant v. 

Biden, No. 18-cv-06810 (N.D. Cal.), vacating the CLP rule. At this time, while the stay remains 

in place, DHS continues to apply the CLP rule.

Conclusion

USCIS will continue to respond to the rising number of credible fear referrals by ensuring DHS 

follows the laws written by Congress – swiftly processing noncitizens so they may either seek 

relief before an immigration judge or be expeditiously removed. Thank you for the opportunity to 

testify. I look forward to answering your questions.