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
BIA Says Burden Shifts to DHS After Asylum Applicant Establishes Past Persecution
The BIA held that, once an asylum applicant has established past persecution, the burden shifts to DHS to prove country conditions have changed, or the applicant could avoid future persecution by relocating, and it would be reasonable to do so. Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008)
CA1 Finds BIA Did Not Conduct Improper Factfinding in Asylum Case
The court held that the IJ resolved the issue of past persecution and that the BIA did not impugn the IJ’s factual finding, but simply explained why it was supportable. (Rotinsulu v. Mukasey, 2/8/08)
Scialabba Memo on Authority to Grant Asylum in Expedited Removal Process
Memo from Lori Scialabba, Associate Director, Refugee, Asylum, and Int'l Operations Directorate, USCIS, in response to the U.S. Commission on International Religious Freedom’s recommendation that asylum officers be given the authority to grant asylum at the time of the credible fear interview.
CA9 Amends Grigoryan Decision; Instructs BIA to Grant MTR
The court amended its 11/19/07 decision regarding ineffective assistance of counsel in an asylum case by an Armenian-Turkish woman harmed in Azerbaijan, finding that the BIA erred in failing to presume prejudice and abused its discretion in denying the MTR. (Grigoryan v. Mukasey, 2/5/08)
USCIS Memo: Revised National Security Adjudication and Reporting Requirements
This February 4, 2008, USCIS Michael Aytes memorandum modifies existing guidance regarding background and security checks on applicants, petitioners and beneficiaries seeking certain immigration benefits.
DOS Briefing on Iraqi Refugee and Special Immigrant Visa Admissions
DOS and DHS held a briefing on 2/5/08 on developments in the Iraqi Refugee and Special Immigrant Visa admissions programs.
Immigration Law Advisor, January 2008 (Vol. 2, No. 1)
Immigration Law Advisor, an EOIR legal publication, with an article on Brand X deference, federal court activity for December 2007, an article on “frivolousness” in asylum adjudications, update on recent BIA precedent decisions, a legislative commentary on CIR, and a regulatory update.
CA2 Remands Frivolous Finding where Applicant Recanted before Final Decision
The court remanded where the applicant admitted filing a materially false asylum application, but withdrew it before the IJ made a final determination on the application. (Zheng v. Mukasey, 2/1/08)
CA1 Finds No Due Process Violation; Upholds Negative Credibility Finding
The court held that the BIA did not err in remanding Petitioner’s case to the same IJ where there was no allegation of misconduct, and found nothing improper about the IJ’s conduct at the second hearing. (Yosd v. Mukasey, 1/29/08)
Human Rights First Memo on Amendments to “Terrorism Bars” and Related Waivers Under the INA
Human Rights First prepared this memo addressing amendments to the INA regarding terrorism inadmissibility grounds and DHS’s discretion to issue waivers. Thank you to Human Rights First for providing this memo.
Text of Enrolled Version of DOD Authorization Bill
Text of the immigration provisions of the National Defense Authorization Act of 2008 (H.R. 4986), regarding military family naturalization, and Iraqi refugees and special immigrants. It was signed into law on January 28, 2008.
CA2 Upholds IJ’s Negative Credibility Finding Based on False Document
The court found that the IJ’s determination that Petitioner’s Pakistani Peoples Party card was invalid was a proper basis for discrediting his testimony. (Zaman v. Mukasey, 1/23/08)
CA11 Rejects Togolese Asylum Claim Based on Brief Detention
The court sua sponte vacated its earlier decision, making no substantive changes. The court upheld the BIA’s finding that Petitioner failed to establish that his 36-hour detention amounted to past persecution. (Djonda v. U.S. Att’y Gen., 1/22/08)
CA11 Finds Persecutor Bar Applies to Guard at Forced Abortion Facility
The court held that the standard for determining whether an applicant is ineligible for asylum and withholding due to assistance or participation in persecution is whether his or her conduct was active, direct and integral to the underlying persecution. (Chen v. U.S. Att’y Gen., 1/17/08)
CA9 Amends Kalouma Decision re: Proof of Identity in Asylum Claims
In response to a petition for rehearing by the government, the court amended its 08/28/07 decision (AILA Doc. No. 07101260) with a few additional paragraphs of analysis. The court rejected the government’s reliance on Farah v. Ashcroft. (Kalouma v. Gonzales, 1/15/08)
CA7 Finds IJ “Cared Little about the Evidence” in Nigerian CAT Claim
The court found that the flaws in the IJ’s reasoning made it question the fairness of the hearing, and that the IJ failed to consider rebuttal evidence regarding whether Petitioner’s crimes were aggravated felonies. (Bosede v. Mukasey, 1/14/08)
CA11 Finds “Courage Does Not Negate Fear” in Colombian Asylum Claim
The court vacated the IJ’s finding that Petitioner, a Colombian lawyer, failed to show a well-founded fear. The court found that she had shown past persecution and was entitled to a rebuttable presumption. (Santamaria v. U.S. Att’y Gen., 1/11/08)
IJ’s Decision Must Contain Explicit Order of Removal When Withholding Granted Without Asylum
The BIA held that when an IJ issues a decision granting an alien’s application for withholding of removal, without a grant of asylum, the decision must include an explicit order of removal. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)
CA1 Holds Attempted Conscription by FARC Is Not a Basis for Asylum
The court held that coercive conscription by the FARC did not trigger an entitlement to asylum, where conscription might be motivated by the desire to fill their ranks and the target might resist for non-political motives. (Tobon-Marin v. Mukasey, 1/8/08)
CA7 Denied Claim Based on Identity Theft and Failure to Prove Homosexuality
The court held that Petitioner’s convictions for identity theft were properly characterized as aggravated felonies. It also rejected his withholding claim based on homosexuality, due to incredible testimony and lack of corroborating evidence. (Eke v. Mukasey, 1/7/08)
Immigration Law Advisor, December 2007 (Vol. 1, No. 12)
Immigration Law Advisor, an EOIR legal publication, with an article on gang violence and asylum, federal court activity for November 2007, update on recent BIA precedent decisions, and a regulatory update.
CA6 Upholds IJ’s Frivolousness Finding in Albanian Asylum Claim
The court found that Petitioner received adequate warning about the consequences of filing of frivolous asylum applications and had sufficient opportunity to account for discrepancies in his various applications. (Ceraj v. Mukasey, 12/28/07)
CA9 Rejects Withholding and CAT Claim of Salvadoran Gang Member
The court rejected Petitioner’s argument that his indelible gang tattoos and former membership in a gang would qualify as a particular social group. (Arteaga v. Mukasey, 12/27/07)
CA6 Upholds Findings of No Nexus and Changed Conditions in Guatemala
The court declined to resolve the issue of whether an imputed political opinion may be the basis for an asylum claim, finding that Petitioner failed to establish that his persecutors had acted on account of his opinion, imputed or otherwise.(Pascual v. Mukasey, 12/19/07)
CA2 Overturns Adverse Credibility Finding Due to Speculation Over Documents
The court held that the IJ’s speculation regarding Petitioner’s identity document from Mauritania and refugee document from Senegal could not support an adverse credibility finding. (Niang v. Mukasey, 12/19/07)