Featured Issue: Asylum Under Trump 2.0
On the first day of his second term, President Trump suspended all entries at the U.S. Southern Border for asylum seekers. Since then, the Administration has implemented sweeping restrictions that shut America’s doors to people fleeing persecution. These policies violate federal law, erode constitutionally protected due process, exacerbate the asylum backlog, and give those seeking safety an increasingly narrow path to protection.
Left unchecked by Congress, these policies will have dire consequences for both asylum seekers and the integrity of our legal system. Asylum seekers—especially those without access to counsel—are at grave risk of being returned to harm.
It doesn’t have to be this way. The Administration can maintain order at U.S. borders and effectively manage migration without sacrificing fairness and adherence to the law. With more trained asylum officers, a streamlined legal process, legal representation for asylum seekers, and more effective coordination between relevant agencies, the U.S. can establish a safe, orderly, and humane asylum system.
Browse the Featured Issue: Asylum Under Trump 2.0 collection
DOJ OIL October 2013 Litigation Bulletin
The DOJ OIL Immigration Litigation Bulletin for October 2013, with articles on an asylum applicant’s due process rights and frivolous findings based on a withdrawn asylum application, as well as recent circuit court decisions and monthly topical parentheticals.
USCIS Updated Guidance on Language Certification for Asylum Officers
A 9/30/13 memo from John Lafferty, Chief of Asylum Division, announcing updated guidance for language-certified Asylum Officers to conduct credible and reasonable fear interviews in a language other than English; and provides procedures for obtaining language certification from DOS.
USCIS Issues Updated Affirmative Asylum Procedures Manual
A 9/30/13 memo from John Lafferty, Chief of Asylum Division, announcing the issuance of a revised Affirmative Asylum Procedures Manual (“AAPM”) which contains both format and substantive changes. The revised manual supersedes the version issued in November 2007.
CA7 Denies Asylum to Chinese Christian Living in Indonesia
The court upheld the BIA’s denial of the asylum, withholding and CAT claims, finding that the petitioner’s motion to reopen did not point to any evidence that was previously undiscoverable and that the disfavored group approach did not apply. (Salim v. Holder, 8/28/13)
OSC TAL on Reverifying Asylee/Refugee EADs
A 9/25/13 Technical Assistance Letter (TAL) from DOJ Deputy Special Counsel Seema Nanda with guidance on steps employers should take when an asylee or refugee worker presents an EAD for initial I-9 purposes and the EAD subsequently expires.
BIA Remands to Give Respondent Explicit Opportunity to File Asylum Application
Unpublished BIA decision remanding to give the respondent an explicit opportunity to file an asylum application where the IJ made no further inquiry after the respondent stated he was "a little bit afraid" of returning to El Salvador. Special thanks to IRAC. (Matter of Castro Rosa, 9/25/13)
CA9 Remands for BIA to Grant Withholding to Gay Filipino Petitioner
The court granted in part a petition for review, reversing the BIA’s denial of withholding, and holding that the BIA erred by engaging in its own fact-finding, rather than clear error review, in evaluating the harm suffered by a gay Filipino petitioner. (Vitug v. Holder, 7/24/13)
CA9 Remands Asylum Claim for Diola from Senegal
The panel vacated the BIA’s adverse credibility finding and remanded, finding the BIA erred by drawing an adverse inference from the low level of persecution detail provided in the mistakenly filed N-400, as well as with alleged inconsistencies with the I-589. (Bassene v. Holder, 9/23/13)
BIA Remands Asylum Case For Cameroon Native
Unpublished BIA decision remanding case for additional fact-finding and new decision after finding submitted evidence may be sufficient to rehabilitate the respondent’s credibility or established independently past persecution or a well-founded fear of persecution. Courtesy of David Cleveland.
CA10 Dismisses Petition from El Salvadoran Business Owner Threatened by MS 18 Gang
In a nonprecedential decision, the court concluded and dismissed the petition to review, finding that the petitioner failed to exhaust her administrative remedies and thus lacked jurisdiction to consider them. (Castellanos-Pineda, 9/20/13)
USCIS Request for Comments on Revisions to Form I-590
USCIS 60-day notice of request for comments on revisions to Form I-590, Registration for Classification as Refugee, which contains the information needed for USCIS to adjudicate refugee applications. Comments are due by 11/19/13. (78 FR 57870, 9/20/13)
CA9 Upholds Asylum Denial for Guatemalan Rape Victim
The court upheld the BIA’s denial of asylum, finding that petitioner did not show persecution on account of real or imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government. (Garcia-Milian v. Holder, 9/18/13, amended 2/13/14)
CA9 Denies Review of Frivolous Armenian Asylum Claim
The court denied the petition for review of the BIA’s decision affirming an IJ’s determination that the petitioner knowingly filed a frivolous asylum application and that she was statutorily barred from adjustment of status and a 212(i) waiver on that basis. (Kulakchyan v. Holder, 9/18/13)
CA9 Holds DHS May Terminate Prior Grant of Withholding in Conjunction with Removal Proceedings
The court held that DHS may terminate a prior grant of withholding in conjunction with removal proceedings, so long as it meets its burden of demonstrating the grounds for doing so, and that two separate proceedings are not required under 8 CFR §1208.24(f). (Gutierrez v. Holder, 9/13/13)
NSC Liaison Q&As from Asylum and Refugee Product Line Teleconference (9/12/13)
The NSC Liaison Committee unofficial Q&As from AILA and other stakeholders from the 9/12/13 NSC asylee and refugee product line teleconference. Topics included I-602 waivers, G-28s, processing times for fee waiver cases, I-730s, nunc pro tunc asylum for adjustment applicants, I-765s, and TRIG.
CA10 Denies Motion to Reopen for Guatemalan Asylum Seeker
In a nonprecedential decision, the court denied the petition for review, finding that the petitioner failed to explain how changed country conditions in Guatemala would permit an untimely and number barred motion to reopen. (Lopez v. Holder, 9/10/13)
CA5 Remands Case for Anti-Maoist Asylum Seeker from Nepal
The court vacated and remanded, finding the BIA incorrectly required the petitioner to provide direct proof of the nexus between his persecution and his membership in Nepal’s Student Union, and did not consider all the evidence bearing upon the Maoists’ motives. (Sharma v. Holder, 9/9/13)
AAO Approves Employment Authorization for Administratively Closed Asylum Case
On certification from TSC, the AAO affirmed the approved Form I-765, finding that the applicant’s administratively closed asylum proceeding maintained her eligibility for employment authorization under 8 CFR Sec. 274a.12(c)(8).
CA9 Finds it Lacks Jurisdiction to Review Somali Asylum Claim
Despite a mixed BIA decision, the court held it lacked jurisdiction to review the BIA’s underlying denial of asylum, the only issue raised in both petitions for review, because the petitioner failed to file a timely petition for review of that decision. (Abdisalan v. Holder, 9/6/13)
CA9 Remands After BIA Improperly Held Petitioner to Incorrect Legal Standard
The court granted petition for review and remanded after finding that the BIA improperly held that the motion to reopen was numerically barred, erred in restricting the evidence the Petitioner could provide, and erred in failing to consider the evidence tendered. (Zhao v. Holder, 9/6/13).
CA1 Upholds Denial of MTR for Chinese Christian in Indonesia
The court found it was not an abuse of discretion for the BIA to deny the untimely motion, noting that although the petitioner submitted evidence of changed conditions in Indonesia, the information was available at the time of the hearing. (Lie v. Holder, 9/4/13)
CA1 Declines to Exercise Jurisdiction in Asylum Case
Because it was unclear whether the BIA’s remand constituted a final order of removal and the petitioner subsequently filed a timely application for asylum, withholding and CAT relief, the court declined to exercise jurisdiction. (Cano-Saldarriaga v. Holder, 9/4/13)
CA9 Remands Asylum Claim for Prison Guard in India
The court granted the petition for review and remanded, concluding that the BIA misapplied the relevant precedent in determining whether the petitioner’s actions rose to the level of “personal involvement” when triggering the persecutor bar. (Kumar v. Holder, 8/29/13)
CA9 Holds Petitioner Has Constitutional Right to Testify in Support of Asylum Application
The court granted the petition for review, finding that the IJ prejudiced the petitioner by denying his constitutional right to testify in support of his asylum application and making an adverse credibility finding based principally on the cross-examination. (Oshodi v. Holder, 8/27/13)
BIA Remands After IJ Fails to Advise Respondent of Right to Counsel
Unpublished BIA decision remanding case after finding IJ failed to comply with 8 C.F.R. 1240.11(c)(1)(iii) by not advising respondent of his right to counsel specifically in asylum-related relief nor provide him with a legal services list. Special thanks to IRAC. (Matter of K-O, 8/27/13)