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
CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application
The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)
USCIS Provides Information on New Processing Location for Form I-730 Filed for Following-to-Join Refugees
USCIS will transition the processing of Form I-730 for following-to-join refugees to the new Form I-730 Processing Unit at the Asylum Vetting Center in Atlanta. USCIS provided background information on this decision.
Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue
USCIS updated its website to reflect that USCIS asylum offices may need to reschedule interviews based on local conditions. When not otherwise rescheduled, social distancing and safety guidelines continue to be followed as detailed on the USCIS website.
EOIR Invites Stakeholders to Online Screening of Model Hearing Program
As part of the Access EOIR initiative, EOIR invites stakeholders to an online viewing session of its Model Hearing Program event on February 3, 2022, from 2 pm to 4 pm (ET). The video will cover MHP, protection under CAT, and more. RSVP to EngagewithEOIR@usdoj.gov by February 2, 2022, at 5 pm.
Multilingual Instructional Videos on Various Immigration Processes
Innovation Law Lab shares instructional videos in a variety of languages, including Central American indigenous languages, explaining different immigration processes. Videos cover topics such as the difference between ICE, ISAP, and the immigration court and what are biometrics, among other items.
Practice Pointer: Practice Tips for Addressing Lengthy EAD Processing Timelines
AILA’s USCIS HQ (Benefits Policy) Committee provides a practice resource discussing tips for addressing lengthy EAD processing delays, including how to place an expedite request or request case assistance from the CIS Ombudsman or a member of Congress.
TRAC Reports on Immigration Court Backlog
TRAC released a report on the immigration court backlog, finding that pending cases at the end of December 2021 reached 1,596,193—the largest in history. The report includes information on quarterly increases in the backlog and recent accelerations in rate of growth.
USCIS Report to Congress: Application Processing for FY2022
USCIS released a report to Congress outlining its expenditure plan for $250 million provided by Congress to support application processing, which includes the reduction of backlogs within asylum, field, and service center offices, and to support the refugee program.
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)
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 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)
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.