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
CA8 Upholds Denial of Asylum to Citizen of Burkina Faso Who Feared Harm Based on His Political Opinions
The court held that because the IJ identified specific, cogent reasons to disbelieve the testimony of the petitioner, a citizen of Burkina Faso who feared harm due to his political opinions, sufficient evidence supported the IJ’s adverse credibility determination. (Zongo v. Garland, 6/16/23)
CA1 Upholds Denial of Withholding of Removal to Ghanaian Petitioner Whose Family Had Been Displaced from Their Farm
The court rejected the petitioner’s argument that being removed to his native Ghana would contravene INA §241(b)(3)(A) because he would lack the freedom to return to his family’s cocoa farm due to a conflict with a local chieftain. (Odei v. Garland, 6/15/23)
High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better
AILA released a first-of-its-kind report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application.
AILA First-Time Survey of Asylum Practitioners Asks and Answers the Question: What Does it Take to Prepare a Migrant for the High-Stakes Asylum Proce
AILA released report on asylum entitled High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better; AILA President Jeremy McKinney noted that the report’s solutions “would go a long way toward ensuring the integrity of a system that is inefficient and often unjust.”
IRAP Practice Advisory: Preserving Asylum-Based CAM Eligibility
IRAP produced a practice advisory with best practices and template motions for administrative closure when representing parents whose children or eligible family members are CAM Refugee and Parole Program applicants based on the parent’s pending, defensive asylum application.
Practice Alert: Keep Proof of Asylum Filings to Navigate Frontlog Issues
AILA’s Asylum & Refugee Committee provides a practice alert on how to navigate USCIS frontlog issues and receipt errors.
Asylum Officers’ Union and Former IJs and BIA Members File Amicus Briefs Arguing New Asylum Rule Undermines Asylum System
National Citizenship and Immigration Services Council 119 and more than 40 former IJs and BIA members filed amicus briefs in support of the plaintiffs, asking the court to find unlawful the “Circumvention of Lawful Pathways” rule. (East Bay Sanctuary Covenant v. Biden, 6/7/23)
CA9 Upholds Denial of Asylum to Guatemalan Woman Who Feared Future Persecution on Account of Her Political Opinion
Where the Guatemalan petitioner claimed she feared persecution on account of her political opinion, the court held that she had failed to show a nexus between her past or feared future harms and her membership in three alleged particular social groups. (Rodriguez-Zuniga v. Garland, 6/7/23)
CA8 Upholds Asylum Denial as to Married Homosexual Petitioner from Mexico
The court held that substantial evidence supported the BIA’s finding that the petitioner had failed to demonstrate a well-founded fear of persecution based on his membership in the particular social group (PSG) of “married homosexual males in Mexico.” (Pacheco-Moran v. Garland, 6/5/23)
USCIS Releases Affirmative Asylum Procedures Manual Due to FOIA Lawsuit
AILA member David Cleveland shared USCIS’s Affirmative Asylum Procedures Manual (AAPM) released due to a FOIA lawsuit brought by the Louise Trauma Center. This AAPM references sources as late as June 8, 2023, indicating that it is dated in June or July of 2023.
CA7 Finds Female Business Owner in El Salvador Failed to Establish Well-Founded Fear of Future Persecution
The court held that the documentary evidence did not compel a finding that the petitioner had established a well-founded fear of future persecution, but instead demonstrated general conditions of crime and violence in El Salvador. (Granados Arias v. Garland, 5/31/23)
USCIS Changes Filing Location and Documentation Requirements for Certain Affirmative Asylum Applications
USCIS announced a change in the filing location for certain affirmative asylum applications submitted by mail. Also noted was a new edition of Form I-589 and that filers no longer need to submit passport-style photos, multiple copies of the form, or multiple copies of supporting documentation.
Practice Alert: Regulatory Changes Due to the Asylum Transit Ban
AILA provides a practice alert on regulatory changes made by the newly published regulation Circumventing Lawful Pathways. Interior attorneys should be aware that these changes are not limited to the border and do impact asylum eligibility for non-expedited removal cases.
USCIS 60-Day Notice and Request for Comment on Proposed Revisions to Form I-589
USCIS 60-day notice and request for comment on proposed revisions to Form I-589, Application for Asylum and for Withholding of Removal. Comments are due 7/24/23. (88 FR 33161, 5/23/23)
Survey Questions of Asylum Case Timelines
AILA provides the questions from its survey of asylum case timelines.
CA9 Remands Asylum Claim Where BIA Applied Wrong Standard in Reviewing IJ’s Nexus Determination
The court remanded petitioner’s asylum claims, finding that the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm. (Umana-Escobar v. Garland, 3/17/23, amended 5/23/23)
Practicing Law in TV Land
AILA member Tony Drago describes the impact of using video rather than in-person hearings, writing that while “In 2022, EOIR issued guidance to immigration judges on the use of virtual hearings, but far more clear guidance and standards are needed to ensure fairness.“
DHS and DOJ Final Rule Establishing an Asylum “Transit Ban”
DHS and DOJ final rule establishing a rebuttable presumption of asylum ineligibility for certain noncitizens who enter at the southwest border without documentation and traveled through a country that is a signatory to the 1951 Refugee Convention or its 1967 Protocol. (88 FR 31314, 5/16/23)
CA3 Finds Government May Have Improperly Placed Petitioner Who Initially Entered Through VWP in Asylum-Only Proceedings
The court held that if petitioner did not waive defenses to removal at his last entry, then DHS improperly sought to terminate his asylum status in asylum-only proceedings based on his initial application for entry through the VWP. (Kosh Ishmael v. Att’y Gen., 5/11/23, amended 5/15/23)
Organizations Sue Biden Administration over Asylum Transit Ban
The ACLU, ACLU of Northern California, CGRS, and NIJC filed a complaint challenging the asylum transit ban in the U.S. District Court for the Northern District of California.
CA1 Vacates BIA’s Denial of Asylum to Guatemalan Petitioner Who Supported the LIDER Political Party
The court found that the BIA’s conclusion—namely, that since the petitioner had left Guatemala in January 2015, fundamental changes to the conditions there had negated the objective basis for his particular fear—was not supported by substantial evidence. (Mendez Esteban v. Garland, 5/11/23)
The Bill Left by Title 42 is Due. With Interest.
Amy Grenier explains how the use of Title 42 to effectively end asylum at the southern border allowed two administrations to essentially put border management on a bureaucratic credit card, allowing Congress to ignore its obligations to pass real, holistic and meaningful reform.
Biden Administration’s Asylum Transit Ban Will Undermine U.S. Humanitarian Law and Harm Vulnerable Asylum Seekers
AILA renews its opposition to the Biden Administration’s harmful “Circumventing Lawful Pathways” regulation which functionally bans access to asylum for many vulnerable people; AILA President Jeremy McKinney called the rule an unacceptable “departure from our laws and values.”
USCIS Releases Credible Fear Procedures Manual Due to FOIA Lawsuit
AILA member David Cleveland shared USCIS’s Credible Fears Procedures Manual released due to a FOIA lawsuit.
Practice Alert: Filing for Asylum-Pending EADs Before Obtaining a Receipt Notice
At a recent meeting with AILA, USCIS clarified that if they cannot verify that an I-589 is pending as of the date of the EAD adjudication, the EAD application will be denied, and the asylum seeker will have to refile the I-765 application.