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 Says BIA Erred in Reversing IJ’s Decision to Grant CAT Protection to Salvadoran Petitioner
The court held that the BIA did not provide sufficient justification for its reversal of the IJ’s decision to grant Convention Against Torture (CAT) protection, because it failed to identify reasons that the IJ clearly erred in its factual findings. (Alvarez-Gomez v. Garland, 12/28/22)
CA1 Finds BIA and IJ Applied Appropriate Mixed-Motive Standard in Analyzing Petitioners’ Persecution Claim
The court found that the BIA’s and IJ’s decisions took due account of the possibility of a mixed-motive theory of persecution, and concluded that the petitioners had failed to show a nexus between their claimed persecution and their family membership. (Jimenez-Portillo v. Garland, 12/27/22)
CA11 Finds Petitioner’s State Court Sentence Modification Order Had No Effect for Immigration Purposes
The court held that petitioner’s modification order did not change his term of imprisonment for purposes of federal immigration law, and thus that BIA correctly found he was an aggravated felon and was removable and ineligible for asylum. (Edwards v. Att’y Gen., 12/23/22, withdrawn 3/6/24)
AILA Leads Letter to Administration With Recommendations to Protect Asylum Seekers Whose Information Was Leaked
AILA led a group of legal service providers and coalition partners on sending a letter to ICE, EOIR, and RAIO on additional mitigation efforts to protect detained asylum seekers whose information was leaked in violation of privacy protections.
CA5 Finds Persecutor Bar Applies to Eritrean Petitioner Who Impeded Escape of Persecuted Prisoners
The court upheld the BIA’s application of the persecutor bar as to the petitioner, finding that the record supported the BIA’s conclusion that the petitioner had assisted in persecution in Eritrea by impeding the escape of persecuted prisoners. (Gebrgzabher v. Garland, 12/19/22)
CA9 Says BIA Erred by Failing to Conduct Cumulative-Effect Review When Assessing Past Persecution
The court held that the BIA erred by failing to conduct cumulative-effect review when assessing the petitioner’s evidence of past persecution, finding that the agency improperly analyzed each of the petitioner’s categories of past harm in isolation. (Salguero Sosa v. Garland, 12/16/22)
CA8 Holds That IJ Properly Relied on Common-Sense Inferences in Finding That DHS Proved Petitioner’s Alienage
The court held that substantial evidence supported the IJ’s conclusion—affirmed and adopted by the BIA—that DHS had satisfied its burden to prove the Honduran petitioner’s alienage by clear and convincing evidence. (Escobar v. Garland, 12/15/22)
Delay Actions in the Asylum Context: Avoiding Dismissal and Proving the Case
AILA and the American Immigration Council provide a joint practice advisory discussing the required elements of both a successful APA challenge and mandamus action, as well as pitfalls to avoid.
Resources Related to Ongoing Litigation on MPP
The district court granted plaintiffs’ motion to postpone the effective date of agency action and stayed DHS’s 10/29/21 memoranda and related decision to end the Migrant Protection Protocols (MPP), pending final resolution of the merits. (State of Texas, et al. v. Biden, et al., 12/15/22)
Practice Alert: EOIR to Create Dedicated “EOIR 33” Docket
EOIR is creating a dedicated docket for individuals without a fixed address known as the “EOIR 33 Docket.” This will also be paired with a shift in practice on the part of both CBP and ICE in how NTAs issued at the border and changes of address are handled.
DHS Provides Update on Planning for the Court-Ordered Lifting of Title 42 Border Expulsions
DHS provides an update on its preparations for southwest border enforcement and security following the lifting of the Title 42 border expulsion policy. The update discusses progress on DHS’s “Whole-of-Government Six Pillar Plan,” which was outlined in an April 2022 memo.
USCIS Script and Talking Points from Asylum Quarterly Engagement (12/13/22)
USCIS provided the script and talking points from the asylum quarterly engagement and listening session on 12/13/22.
U.S. Government Detention of Asylum Seekers Flouts International Human Rights Law
AILA Law Journal authors Curtis F.J. Doebbler and Elisa Fornalé shared some insights from their recent article, “International Human Rights Law and the Detention of Asylum Seekers“ which focused on the U.S. practice of detaining asylum seekers and relevant international human rights obligation
AILA and Partners Send Letter to DHS and USCIS about Form I-765 Processing
AILA, the American Immigration Council, and ASAP were joined by a coalition of organizations in urging DHS Secretary Mayorkas and USCIS Director Jaddou to address the inefficiencies and inequities in the processing of Form I-765, Applications for Employment Authorization.
Practice Pointer: Asylum Processing Rule
A new asylum processing rule changes the way that DHS processes asylum cases for certain individuals in expedited removal proceedings. This rule creates a significantly condensed processing time and shifts some of the processing that used to happen at the southern border to interior cities.
The Death to Asylum Regulations Continue to Harm Asylum Seekers Even Though They Are Enjoined
AILA member Victoria Neilson writes about the “Death to Asylum“ regulations and their continued impact on practitioners and asylum seekers ahead of the two-year anniversary of these Trump-era regulations being published on 12/11/20.
Practice Alert: Automatic I-94 Issuance Following Defensive Asylum Grant
USCIS has started issuing asylum I-94s in the mail following a defensive asylum grant, but this roll-out varies by local office. Read this practice alert to learn more.
CA11 Upholds BIA’s Denial of Asylum to Bangladeshi Petitioner Based on IJ’s Adverse Credibility Determination
The court found that the IJ and the BIA had offered specific, cogent reasons for determining that the Bangladeshi petitioner’s testimony was not credible, and concluded that there was substantial evidence to support the IJ’s demeanor determination. (Hasan-Nayem v. Att’y Gen., 12/7/22)
We Must Protect Children in Immigration Proceedings
AILA Law Journal authors Lory D. Rosenberg, Susan G. Roy, Paul Schmidt, and Rekha Sharma-Crawford share some insights about their article, “Time for a Child Welfare Approach to Cancellation of Removal“ in which they focused on how the best interests of the child are routinely ignored.
Policy Brief: Timing Considerations for Effective Representation in Asylum Cases
AILA provides a policy brief on how mandating asylum processing times tread into territory that imperils our nation’s commitment to due process by creating inflexible timelines that on a practical level do not allow meaningful access to counsel for asylum seekers. s
Practice Pointer: File Affirmative Asylum Applications Online
You can now file an affirmative asylum application online. USCIS began receiving Form I-589, Application for Asylum and for Withholding of Removal, through its myUSCIS portal in late 2021 as a “soft launch,” but made it final in November 2022.
AILA Member Obtains Material on Matter of E-F-H-L- via FOIA
AILA member Matthew Hoppock filed a FOIA request regarding Matter of E-F-H-L-. EOIR’s response included a 2/26/18 memo from Gene Hamilton, Counselor to the Attorney General to obtain the Attorney General’s approval of the proposed Attorney General order.
CA2 Finds BIA Applied Incorrect Standards When Adjudicating Honduran Petitioner’s CAT Claim
The court vacated the denial of Convention Against Torture (CAT) relief, finding BIA failed to analyze whether it was likely that any member of the local police who was acting under color of law would participate in, or acquiesce in, petitioner’s torture. (Garcia-Aranda v. Garland, 11/21/22)
CA8 Upholds BIA’s Determination That Asylum Applicant Did Not Adequately Corroborate Her Claim with Reasonably Available Evidence
Applying a highly deferential standard of review, the found that the BIA did not err in determining that the petitioner’s credible but weak testimony supporting her asylum claim was not adequately corroborated, and thus denied the petition for review. (Adongafac v. Garland, 11/21/22)
AILA and Partners Responds to USCIS Collection on I-589 Form
AILA and partners submit comments in response to the collection activities on the extension without change of Form I-589, Application for Asylum and Withholding of Removal, and urge USCIS to make changes rather than renewing the form without any chances.