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
CRS Provides Updated Report on Legal Issues with DHS “Metering” Policy
CRS provided an updated legal sidebar on “metering,” which limited the amount of asylum seekers processed daily on the southwest border. The report focuses on Al Otro Lado v. Mayorkas conflicting with Title 42, but accounts for the recission of the metering policy in November 2021.
EOIR Updates Procedure for Requesting ROPs in the Policy Manual
EOIR updated procedures for parties to request ROPs in Parts I, II, and III of the policy manual.
D.C. Circuit Says DHS Cannot Expel Families Without Assessing whether They May Be Persecuted or Tortured
The court affirmed the district court’s preliminary injunction in part and remanded for further proceedings, stating, “For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured.” (Huisha-Huisha, et al. v. Mayorkas, et al., 3/4/22)
AILA President Allen Orr Responds to D.C. Circuit Court of Appeals Decision Rejecting “Title 42”
AILA President Allen Orr called the D.C. Circuit decision on Title 42 expulsions a “significant victory for the migrant families who have correctly and consistently asserted that the law of this nation protects those fleeing persecution, and for all of us advocating for this cruel policy to end.”
CA5 Finds BIA’s Denial of Cancellation of Removal to Guatemalan Petitioner Was Supported by Substantial Evidence
Upholding the BIA’s and IJ’s denial of cancellation of removal, the court held that the petitioner had failed to establish that his family would suffer hardship above and beyond that regularly faced by families who are separated by one member’s removal. (Raymundo Morales v. Garland, 3/4/22)
CA5 Finds Guatemalan Petitioner Failed to Show a Well-Founded Fear of Future Persecution Based on a Protected Ground
The court held that the petitioner had failed to show that the harm she suffered in Guatemala rose to the level of persecution or that she had a well-founded fear of future persecution on account of her anti-police corruption political opinion. (Gregorio-Osorio v. Garland, 3/4/22)
CA5 Upholds Denial of Motion to Reopen Where Petitioner Alleged Conditions Had Materially Worsened in El Salvador
The court upheld the BIA’s denial of the untimely motion to reopen, rejecting the petitioner’s claims that the BIA had misapplied Singh v. Lynch and that conditions in El Salvador had materially worsened since the issuance of her removal order. (Martinez-Guevara v. Garland, 3/3/22)
CA8 Upholds Denial of Asylum to Salvadoran Petitioner Who Feared Persecution Based on Her Religious Activities and Gender
Upholding the BIA’s asylum denial, the court held that petitioner had failed to show that her fear of future persecution was objectively reasonable, because her evidence did not support her claim of a particularized fear based on her religious activities. (Rivera Menjivar v. Garland, 3/3/22)
Let’s Give a Hand to AILA Members Doing Amazing Pro Bono Work!
AILA's Practice and Professionalism Center works with AILA members to help them engage in pro bono activities; this Think Immigration post is an opportunity to learn and get inspired by three of our recent Pro Bono High Five videos.
Generations Later, Another Evacuation Effort Stalls
AILA member and volunteer Spojmie Nasiri shares a recent experience when she met a Vietnamese refugee whose story strengthened her resolve to help Afghan evacuees and reminded her of the interconnectedness of all our lives.
CA4 Upholds Asylum Denial to Petitioner Who Claimed She Was Persecuted on Account of Her Family Relationship to Her Sister
Denying the petition for review, the court found that substantial evidence supported the BIA’s conclusion that the petitioner’s family relationship to her sister was not a central reason for her persecution by her sister’s abusive ex-husband. (Toledo-Vasquez v. Garland, 3/2/22)
CA4 Says BIA Should Have Analyzed Petitioner’s Motion to Reopen Under 8 CFR §1003.23(b)(3)
The court held that the BIA erred by analyzing the petitioner’s motion to reopen his asylum application under the wrong standard, concluding that the motion should have been considered under 8 CFR §1003.23(b)(3), not §1003.23(b)(4). (Garcia Hernandez v. Garland, 3/2/22)
CA3 Remands Where BIA Inserted Itself into Factfinder Role in Denying Petitioner’s CAT Claim
Remanding petitioner’s Convention Against Torture (CAT) claim, the court held that the BIA erred by disagreeing with the IJ’s weighing of the evidence when it reversed the IJ’s factual determination that petitioner would likely be tortured in Guatemala. (Arreaga-Bravo v. Att’y Gen., 3/2/22)
AILA and Partners Send Letter Urging DOJ and DHS to Rescind the Pandemic-Related Ban on Asylum
AILA and partners sent a letter urging to DOJ/DHS to rescind the Security Bars and Processing rule, which would ban asylum seekers who have transited through or come from a country with a communicable disease or who exhibit symptoms consistent with such disease.
USCIS to Host Listening Session on Immigration Protection for Stateless Individuals in the United States
USCIS will host a listening session on Tuesday, March 8, 2022, from 12:30 to 1:30 pm (ET) on immigration protection for stateless individuals living in the United States. USCIS is requesting feedback on terms and definitions, protections, evidentiary issues, and the determination process.
CA6 Says Petitioner Knowingly Filed Frivolous Asylum Application Under INA §208(d)(6)
The court held that despite the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland, the petitioner remained ineligible for cancellation of removal because he had filed a frivolous asylum application within the meaning of INA §208(d)(6). (Khaytekov v. Garland, 2/25/22)
BIA Dismisses Appeal of IJ’s Denial of Adjustment of Status under INA §209(b)
BIA found that an applicant for adjustment of status under INA §209(b) must possess asylee status at the time, and thus an applicant whose asylee status has been terminated cannot adjust to lawful permanent resident status under this provision. Matter of T-C-A-, 28 I&N Dec. 472 (BIA 2022)
USCIS to Host Stakeholder Engagement on the CAM Program
USCIS will host a stakeholder engagement on Wednesday, March 9, 2022, from 2 to 3 pm (ET) on the reopening and expansion of the CAM Program. Submit non-case-specific questions to public.engagement@uscis.dhs.gov with “Question CAM program March 9” in the subject line by February 25 at 4 pm (ET).
USCIS Provides Notes from Asylum Quarterly Stakeholder Engagement
USCIS released notes from its Asylum Quarterly Stakeholder meeting on February 23, 2022. AILA’s Asylum & Refugee National committee and other stakeholders submitted questions in advance. Topics included treatment of one-year-filing-deadline cases and top-five nationality filings, among others.
EOIR Updates Appendix F of the Policy Manual Regarding Certificate of Service
EOIR updated appendix F of the policy manual regarding information on “certificate of service” or “proof of service.”
CA1 Upholds Denial of Asylum to Guatemalan Petitioner with Mam Identity
The court held it lacked jurisdiction to review, concluding that petitioner’s factual claim masqueraded as a legal challenge because it took issue with the evidentiary basis for BIA’s finding that circumstances did not excuse his untimely asylum application. (López-Pérez v. Garland, 2/22/22)
CA1 Dismisses Challenge to Canceled FARO for Lack of Jurisdiction
The court dismissed for lack of jurisdiction the petition for review of a Final Administrative Removal Order (FARO), finding that DHS’s cancellation of the FARO was valid, and thus that there was no final removal order against the petitioner at the present time. (Xu v. Garland, 2/18/22)
CA1 Remands Asylum Claim Where Petitioner Alleged Membership in PSG of “Salvadoran Female Small Business Owners”
The court remanded the Salvadoran petitioner’s asylum claim for the BIA to consider in the first instance whether she was a member of the particular social group (PSG) consisting of “Salvadoran female small business owners.” (Gomez-Abrego v. Garland, 2/16/22)
CIS Ombudsman to Host USCIS/EOIR/Asylum Coordination Listening Session
CIS Ombudsman's Office extends invitation to a listening session on 2/24/22 on barriers to asylees and their legal representatives who are before an IJ and seeking documentation from USCIS. In particular, the Ombudsman wishes to hear about barriers in seeking employment authorization and Form I-94.
CA8 Upholds Denial of CAT Relief to Petitioner Who Claimed He Would Be Tortured If Removed to South Sudan or Uganda
The court held that BIA did not err in finding that petitioner failed to prove it was more likely than not he would be tortured by the government if returned to South Sudan or Uganda, and thus he was not entitled to Convention Against Torture (CAT) relief. (Deng Chol v. Garland, 2/16/22)