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
CA11 Finds Applicants Suffered Past Persecution; No Withholding for Spouse
CA11 concluded that the cumulative effect of two attacks, continuing threatening phone calls, and vandalism to a car amounted to past persecution, but that under withholding there are no derivative benefits for spouses, unlike for asylum grantees. (Delgado v. U.S. Atty. Gen., 5/25/07)
Scharfen Memo on Processing the Discretionary Exemption to Inadmissibility for Having Provided Material Support
This 5/24/07 Memo from Jonathan Scharfen, Deputy Director, U.S. Citizenship and Immigration Services discusses processing the discretionary exemption to the inadmissibility ground for having provided material support to certain terrorist organizations.
CA11 Rejects Colombian Asylum Claim for Failure to Show Nexus
CA11 found there was no dispute that the FARC had persecuted Petitioners, in part, because they were wealthy and refused to pay a war tax, but that this did not mean that Petitioners’ fear of persecution was on account of political opinion. (Cardona Rivera v. U.S. Att’y Gen, 5/23/07)
CA1 Finds Persecutor Bar Requires Culpable Knowledge
The court held that the persecutor bar should not apply to Petitioner, a former lieutenant in the Peruvian military, if his version of his state of mind is accepted, that is, if he had no knowledge of the murder of civilians. (Castaneda-Castillo v. Gonzales, 5/23/07)
CA8 Holds IJ Improperly Excluded Expert Report and Testimony in Asylum Case
The court held that the IJ’s exclusion of experts’ reports and testimony likely affected the outcome of the asylum proceedings and resulted in the violation of Petitioner’s due process rights. (Tun v. Gonzales, 5/21/07)
CA6 Reverses IJ’s Adverse Credibility Finding; Recommends New IJ on Remand
The court found that the IJ focused on irrelevant and arguably nonexistent inconsistencies in making his adverse credibility finding. (Mapouya v. Gonzales, 5/18/07)
CA7 Holds Palestinian Is Citizen of Jordan Based on Admission at Hearing
The court upheld the IJ’s removal order to Jordan for a West Bank Palestinian, stating that it suspected that he was stateless, not a Jordanian citizen, based on West Bank history. (Zahren v. Gonzales, 5/17/07)
List of Immigrant and Nonimmigrant Class of Admission Codes
The DHS Office of Immigration Statistics provides a chart listing Immigrant and Nonimmigrant Class of Admission codes, the relevant section of law, and description.
CA7 Remands Claim of Chinese Christian Where IJ Quizzed Applicant on Bible
The court reversed the adverse credibility determination holding that the IJ impermissibly relied on his perceived common knowledge about the Bible when he concluded that Petitioner had only a rudimentary knowledge of Christianity.(Jiang v. Gonzales, 5/14/07)
USCIS Fact Sheet on Secretary Chertoff's 4/27/07 Material Support Memo
USCIS addressed DHS Secretary Chertoff’s exercise of authority under Section 212(d)(3)(B)(i) of the INA in a 4/27/07 memo, which established a framework for potential exemption from inadmissibility to persons who provided material support to terrorist organizations under duress.
DHS Issues Notice of Determination on Material Support Provided Under Duress
Secretary Chertoff discretionary determination that § 212(a)(3)(B)(iv)(VI) of the INA shall not apply with respect to material support provided under duress to a terrorist organization as described in § 212(a)(3)(B)(vi)(I) or § 212(a)(3)(B)(vi)(II). (72 FR 26138, 5/8/07)
CA8 Finds Past FGM Is Persecution and Basis for Asylum
The court joined the growing number of circuits holding that FGM rises to the level of persecution. CA8 held here that the persecution was on account of her membership in the particular social group of Somali females. (Hassan v. Gonzales, 5/7/07)
USCIS Publishes Revision of Comment Request on Form I-730
USCIS revision of a request for comments on Form I-730, Refugee/Asylee Relative Petition. Comments are due 7/3/07. (72 FR 25326, 5/4/07)
CA2 Upholds BIA’s Adverse Credibility Finding after Stipulated Remand
The court concluded that the BIA’s adverse credibility finding was not prohibited by the terms of CA2's stipulated remand, the regulatory scheme governing remands, or due process considerations. (Belortaja v. Gonzales, 4/27/07)
DHS Secretary Chertoff Issues Guidance on Material Support
Chertoff memo establishes a framework for potential exemption from inadmissibility to persons who provided material support to terrorist organizations under duress. It lists factors to be considered.
BIA Discusses "Frivolous" Asylum Determinations
The BIA held that IJs must address the question of frivolousness separately and that the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007)
CA6 Upholds Asylum Denial but Finds Gov’t Lacks Unbridled Discretion in MTR
The court upheld the adverse credibility findings. Regarding the denial of the motion to remand based on Petitioner’s marriage to a US citizen, the court rejected the government’s argument that Velarde gives it unbridled discretion. (Sarr v. Gonzales, 4/19/07)
CA7 Finds IJ Erred in Finding Salvadoran Asylum Applicant Is a Persecutor
The court found that the BIA and the courts had not addressed the question of whether mere presence at the scene of persecution constitutes participation. It found that Petitioner’s denial of asylum is not compelled where the trial for murder was a “farce.” (Doe v. Gonzales, 4/17/07)
CA3 Overturns Adverse Credibility Finding in Nigerian Asylum Claim
The court found that the inconsistencies cited by the IJ led it to conclude that the IJ failed to take into account persuasive evidence that not only explained the inconsistencies, but also supported Petitioner’s claim of persecution. (Chukwu v. Gonzales, 4/13/07)
CA8 Holds LPR Originally Admitted as Refugee is Subject to Removal
The court joined CA3 and CA9 in holding that a person who enters the U.S. as a refugee, adjusts his status to lawful permanent resident and is thereafter convicted of a removable crime, is subject to removal even though his refugee status was never terminated. (Xiong v. Gonzales, 4/12/07)
AILA Liaison/NSC Spring Meeting Q & As (4/12/07)
The 4/12/07 Q&As include: I-140 degree equivalency, Schedule A issues, successor-in-interest petitions, I-751s, N-400s, I-130 reinstatements, L-1 I-797s for Canadian border applicants, expedite requests, Mariel Cubans, biometrics, asylee-based EADs, I-730s, EB I-485s, INA § 245, and AR-11s.
CA3 Finds No Jurisdiction Over Challenge to the 1-Year Asylum Deadline Veiled as Due Process Claim
The court rejected Petitioner’s attempt to recast his factual challenge as a due process claim and found no jurisdiction to review the BIA’s refusal to excuse his failure to comply with the one-year asylum deadline. (Jarbough v. Att’y Gen. of the U.S., 4/11/07)
CA3 Finds Jurisdiction to Review Asylum Claim by VWP Entrant
The court held that a denial of a Visa Waiver Program entrant’s application for asylum, withholding, and CAT relief constitutes a “final order of removal” within the meaning of INA §242(a)(1), and is therefore subject to circuit court review. (Shehu v. Att’y Gen. of the U.S., 4/9/07)
CA7 Finds BIA Abused Discretion in Denying MTR Ethiopian Asylum Claim
The court held that the BIA gave no reasoned explanation for its finding that Petitioner had not provided evidence of changed conditions in Ethiopia. (Gebreeyesus v. Gonzales, 4/6/07)
BIA Discusses North Korean Human Rights Act of 2004
The BIA held that the North Korean Human Rights Act of 2004 does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea. Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007)