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
This Should be Written By Someone Else
AILA Asylum and Refugee Committee Member Lindsay Harris shares the plight of her Afghan clients and the solutions that Congress and USCIS need to enact and implement as so many families face unnecessary trauma and hardship.
DHS Reports on Persons Enrolled in MPP in December 2021
DHS released a report on initial enforcement outcomes for persons enrolled in MPP from December 6, 2021, to December 31, 2021. The report includes information on fear screenings, returns and disenrollements, non-refoulement interviews, and more.
Removal Proceedings in the Time of COVID
Jonathan Willmoth reflects on the COVID-19 pandemic's impact on court proceedings and the Biden administration's efforts to expand prosecutorial discretion, two areas he looks forward to learning more about at the upcoming AILA Virtual Midwinter Conference.
CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility
In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)
CA1 Remands for Reconsideration of Adverse Credibility Determination Where IJ and BIA Relied on Flawed “Gang Assessment Database”
On rehearing en banc, the court granted the petition for review, finding that IJ’s and BIA’s adverse credibility determination was not supported by substantial evidence, where the IJ had relied on a “Gang Assessment Database” that contained serious flaws. (Diaz Ortiz v. Garland, 1/10/22)
CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity
The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)
CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application
Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)
CA4 Finds That “Prosecution Witnesses” Is Not a PSG
The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)
CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction
The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)
Third Delay of Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal
USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)
CA3 Reinstates IJ’s Grant of CAT Relief to Guatemalan Petitioner Where BIA Exceeded Its Proper Scope of Review
Where the BIA had reversed the IJ’s decision granting the Guatemalan petitioner Convention Against Torture (CAT) relief, the court held that BIA erred by inserting itself into the factfinder role and disagreeing with the IJ’s weighing of the evidence. (Arreaga-Bravo v. Att’y Gen., 12/23/21)
FY 2022 USCIS Training Materials on Country of Origin Research Methods for Nicaragua
USCIS training materials—including slide deck, recorded presentation, and notes—from the FY22 Q1 National Training Curriculum Working Group presentation on COI research methods for Nicaragua. Special thanks to Louise Trauma Center for sharing these documents, which were obtained via a FOIA request.
CA3 Finds Congolese Asylum Seeker’s Fear of Returning to the DRC Was Objectively Reasonable
Granting the petition for review, the court held that the record compelled a finding that the risks petitioner faced upon return to the Democratic Republic of the Congo were sufficient to give rise to an objectively reasonable fear of future persecution. (Nsimba v. Att’y Gen., 12/22/21)
TRAC Reports on Asylum Backlog and Wait Times
TRAC released a report on asylum backlog and wait times. Since FY2001, half of all asylum applicants have successfully remained in the U.S. The backlog is now at 667,229 and average wait time is nearly four and a half years. The report tracks growth in the backlog, success rates by state, and more.
CA9 Finds That BIA Sufficiently Considered Petitioner’s CAT Claim and Provided Adequate Rationale for Its Rejection
The court held that the BIA had sufficiently considered the relevant record evidence regarding the petitioner’s claim for deferral of removal under the Convention Against Torture (CAT) and had provided an adequate rationale for rejecting that claim. (Rodriguez-Jimenez v. Garland, 12/21/21)
EOIR Announces 22 New Immigration Judges
EOIR announced the appointment of 22 new immigration judges (IJs) by Attorney General Merrick B. Garland, including five Unit Chief Immigration Judges (UCIJs). Biographical information has been provided for each of them.
Congress Calls for Increased Oversight At CoreCivic Detention Facility In Torrance County
U.S. Senators Martin Heinrich (D-NM) and Ben Ray Luján (D-NM) and U.S. Representatives Melanie Stansbury (D-NM) and Teresa Leger Fernández (D-NM) are calling on DHS officials to increase oversight on CoreCivic’s management of the Torrance County Detention Facility.
CA5 Finds Adverse Credibility Determination Was Supported by Substantial Evidence Apart from Inter-Proceeding Evidence
Despite misgivings about the IJ’s reliance on inter-proceeding evidence under Matter of R-K-K-, the court held that the IJ’s adverse credibility finding was supported by substantial evidence, and that the petitioner’s due process claims lacked merit. (Singh v. Garland, 12/17/21)
DHS Announces Commitment to Enhance Protections for Stateless Individuals
DHS announced it will commit to adopting a definition of statelessness for immigration purposes and enhance protections for stateless individuals. DHS plans to identify its barriers to legally available immigration relief and benefits, and build a process for making stateless determinations.
CA1 Upholds CAT Denial to Petitioner Who Claimed He Would Be Subject to Torture While “Imprisoned” in Haiti as a Criminal Deportee
Upholding the denial of petitioner’s Convention Against Torture (CAT) claim, the court found that expert testimony concerning treatment in Haiti of criminal deportees did not address whether petitioner was more likely than not to be held in prolonged detention. (Bonnet v. Garland, 12/13/21)
USCIS Rescinds Policy Requiring Interviews of All Petitioners Filing Form I-730
USCIS will rescind a November 2020 policy requiring interviews of all petitioners filing Form I-730, deemed inconsistent with EO 14012 and 14013. Effective 12/10/21, USCIS will make case-by-case determinations on whether to interview Form I-730 petitioners.
Resources on Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications
Learn more about the Mendez Rojas v. Wolf final settlement. Following the district court’s approval of the settlement agreement, USCIS has begun sending notices to potential class members on how they can benefit from the injunction and on the 4/22/22 filing deadline.
Tackling Inequality – a Human Rights Day Reflection
In this blog post, part of the Diversity, Equity and Inclusion Committee's blog post series, AILA member Roland Luo shares insights about the importance of International Human Rights Day and what we can each do to give meaning to the universality of human rights.
CA3 Says Failure to Include Date and Time of Hearing in NTA Did Not Require Termination of Removal Proceedings
The court held that the BIA properly denied petitioner’s motion to terminate removal proceedings even though her Notice to Appear lacked a specific date and time, and found that “Guatemalan women” was not a cognizable particular social group (PSG). (Chavez-Chilel v. Att’y Gen., 12/9/21)
TRAC Report Finds Asylum Success Varies Widely Across Immigration Judges
TRAC released a report finding that asylum outcomes vary significantly from judge to judge and court to court. Findings include that half of all asylum cases are decided by just six immigration courts, and the majority of immigration judges have an asylum denial rate of 70% or more.