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 Remands Where BIA Failed to Address IJ’s Findings Regarding Petitioner’s Likely Treatment in an IDP Camp in Somalia
The court held that the BIA erred by resolving DHS’s appeal without addressing the IJ’s findings regarding the likely treatment of the petitioner, a member of a minority clan in Somalia who suffered from mental illness, in an internally displaced person (IDP) camp. (Salat v. Garland, 4/28/22)
CA9 Says BIA Did Not Abuse Its Discretion in Finding Petitioner Did Not Warrant Equitable Tolling of Motion to Reopen
Where petitioner filed a motion to reopen 16 years after the statutory deadline, the court held that the BIA did not abuse its discretion in finding he did not warrant equitable tolling of the time limit based on alleged ineffective assistance of counsel. (Hernandez-Ortiz v. Garland, 4/26/22)
CA9 Concludes It Can Deny Petition Based on BIA’s Lack of Jurisdiction Even Where BIA Did Not Rule on That Basis
Upholding the BIA’s denial of petitioner’s motion to reopen, the court concluded that it could properly deny a petition for review based on the BIA’s lack of jurisdiction under INA §241(a)(5), even where the BIA did not rely on that jurisdictional bar. (Gutierrez-Zavala v. Garland, 4/26/22)
Secretary Mayorkas Issues Memo on DHS Plan for Southwest Border Security and Preparedness
On 4/26/22, DHS issued a memorandum with details on how the agency is leading the execution of a whole-of-government plan to prepare for and manage increased encounters of noncitizens at the southwest border, including elements that will be implemented once Title 42 border expulsions are terminated.
AILA and Partners Submit Amicus Brief on the Nonstate Actor Test
AILA and partners submitted a brief urging the court to apply the de novo standard of review to the agency’s legal analysis in regards to the nonstate actor test, grant the petition for review, and remand for the BIA to apply correct standard of review and unable-or-unwilling nonstate actor test.
AILA Member Talking Points on Expulsions at the Border
AILA members may find these talking points useful for interviews with reporters covering the expulsions at the southern border and the return to Title 8.
DHS 5-Day Notice and Request for Comments on New MPP Disenrollment Request System
DHS 5-day notice and request for comments on a new public-facing Migrant Protection Protocols (MPP) Disenrollment Request website. Comments are due 4/26/22. (87 FR 23879, 4/21/22)
AILA and Partners Urge President Biden to End Title 42 Border Expulsions
On 4/21/22, leaders of immigrant, civil rights, humanitarian, labor, and human rights organizations sent a letter to President Biden urging him to end border expulsions under Title 42 and to oppose congressional attempts to keep the border expulsion policy in place via legislation.
CA4 Says BIA Did Not Err in Considering Aggregate Risk of Torture as to Salvadoran Petitioner
Upholding the denial of Convention Against Torture (CAT) relief, the court held that the IJ did not improperly conflate risks posed by the police and vigilante groups, and that BIA correctly reviewed the IJ’s finding under the clearly erroneous standard. (Ibarra Chevez v. Garland, 4/15/22)
CBP Releases Statement on Transportation of Migrants to Washington, D.C.
CBP released a statement regarding the transportation of migrants to Washington, D.C. The statement specifies that “Governor Abbott is taking actions to move migrants without adequately coordinating with the federal government and local border communities.”
Five Tips to Minimize Retraumatizing Your Clients
Every time a client must tell their traumatic experiences, there is a potential for retraumatizing them. Minimize that effect and improve your advocacy through these five essential tips from the popular roundtable The Trauma-Informed Practice & Lawyering Skills.
CA5 Finds Asylum Applicant Failed to Show Honduran Government Was Unable or Unwilling to Control Her Persecutors
The court held that substantial evidence supported the BIA’s finding that the petitioner, who had been abused as a child and threatened by the MS-13 gang, did not show that the Honduran government was unable or unwilling to control her alleged persecutors. (Sanchez-Amador v. Garland, 4/11/22)
AILA Makes Suggestions to USCIS to Address I-730 Processing Delays
AILA's Asylum and Refugee National Committee sent a letter to Ted H. Kim, Acting Director of USCIS RAIO Directorate, with suggestions for tackling the delays in processing of I-730 applications.
CA7 Fines Attorney Who Failed to Pay Docketing Fee or Submit in Forma Pauperis Motion on Client’s Behalf
The court dismissed the petition for review for failure to pay the docketing fee or to file a motion to proceed in forma pauperis in compliance with Fed. R. App. P. Rule 24(b), and ordered the petitioner’s attorney to pay a fine of $1,000. (Camacho-Valdez v. Garland, 4/6/22)
CDC Provides Public Health Determination and Order on Termination of Title 42
On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
CBP Releases Statement on Termination of Title 42
CBP issued a statement on the termination of Title 42, affirming that the agency will return to use of Title 8 once the order is terminated. The statement indicates that there will also be increased use of technology, on-ground monitoring, drones, and additional personnel to supplement BP agents.
CA8 Upholds Asylum Denial to Mexican Petitioner Whose Husband Disappeared While Fighting Organized Crime
The court held that the BIA did not err in determining that the Mexican petitioner, whose husband had disappeared while serving as a commander of a local auto-defense group that fought organized crime in their hometown, was not entitled to asylum. (Barrera Arreguin, et al. v. Garland, 4/4/22)
CA8 Upholds Denial of CAT Relief to Brothers Who Were Charged with Fraud in Bolivia and Had Warrants for Their Arrest
The court held that the IJ’s adverse credibility determination was supported by substantial evidence, and that petitioners had failed to show that their business partner was targeted for torture while in custody in Bolivia or that they would be as well. (Paredes Gonzales v. Garland, 4/1/22)
Ending Title 42 Finally on the Horizon
AILA welcomes the announcement from the Biden Administration that the use of Title 42, a public health law, to expel vulnerable migrants at our border will finally end on May 23, 2022. AILA Executive Director Ben Johnson noted, “This day has been far too long in coming.”
DHS Releases Statement on CDC’s Title 42 Order Termination
DHS released a statement in response to the CDC determination that it will, effective May 23, 2022, terminate its Title 42 public health order. DHS will continue to expel single adults and families at the Southwest border until that date and then return to processing individuals pursuant to Title 8.
CA8 Says That BIA Did Not Err in Declining to Address IJ’s Adverse Credibility Finding as to Somalian Petitioner
Denying the petition for review, the court held that the BIA correctly determined that the IJ’s decision included an alternative determination that the petitioner’s claims for Convention Against Torture (CAT) relief would fail even if his testimony were believed. (Jama v. Garland, 3/30/22)
CA10 Remands Petitioner’s Asylum Claims After Finding Extensive Evidence of Widespread Violence Against Transgender Women in Honduras
The court held that the BIA erred in rejecting petitioner’s asylum claim based on a fear of future persecution, finding that any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras. (Gonzalez Aguilar v. Garland, 3/29/22)
DHS and DOJ Interim Final Rule on Asylum Processing
DHS and DOJ interim final rule (IFR) on asylum processing. The IFR significantly changes the regulations governing the processing of asylum claims by individuals subject to expedited removal. The IFR is effective 5/31/22, and comments will be accepted until 5/31/22. (87 FR 18078, 3/29/22)
IRAP Provides Central American Minors (CAM) Program Re-Parole Resources
IRAP provided information and sample templates for attorneys assisting CAM parolees in seeking re-parole. Last summer, the government began accepting applications for CAM re-parole from all CAM parolees, even if their CAM parole period has already ended and they are currently out of status.
HHS Notice of Expansion of Eligibility Period for Refugee Cash and Medical Assistance
HHS notice of the expansion of the Refugee Cash Assistance (RCA) and Refugee Medical Assistance (RMA) eligibility period from 8 months to 12 months for participants whose date of eligibility for Office of Refugee Resettlement (ORR) benefits is on or after 10/1/21. (87 FR 17312, 3/28/22)