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
DHS Provides Samples of "Operation Horizon" NTAs
DHS provided information on “Operation Horizon,” which is designed to place 78,000 individuals into removal proceedings, who originally only received Notices to Report (NTRs). NTAs are being mailed to addresses provided by immigrants at the time of entry.
Asylum Seekers File Class Action Lawsuit Challenging USCIS’s Delay in Renewing EAD Applications
Five asylum seekers filed a class action lawsuit in the U.S. District Court for the Northern District of California challenging USCIS’s allegedly unlawful delay in adjudicating applications to renew employment authorization documents (EADs) for asylum seekers. (Tony N. v. USCIS, 11/10/21)
CA5 Holds That BIA Erred by Treating Petitioner’s Adverse Credibility Determination as Dispositive of His CAT Claim
The court found that the BIA erred by refusing to consider the Sri Lankan petitioner’s country-conditions evidence in its likelihood-of-torture assessment with regard to his Convention Against Torture (CAT) claim, as required by 8 CFR §1208.16(c)(3). (Arulnanthy v. Garland, 11/8/21)
AILA and Partners Call on ICE to Ensure Due Process in Operation Horizon
AILA, the American Immigration Council, and partner organizations sent a letter to ICE regarding "Operation Horizon"— its plan to mail Notices to Appear (NTA) to individuals released from the border.
Presidential Determination on Unexpected Urgent Refugee and Migration Needs
Presidential determination of 10/22/21 furnishing assistance of up to $976.1 million for the purpose of meeting unexpected urgent refugee and migration needs to support Operation Allies Welcome and related efforts by DOS. (86 60749, 11/4/21)
CA1 Says It Lacks Jurisdiction over Petitioner’s PSG Claim Because He Failed to Exhaust Administrative Remedies
The court held that it lacked jurisdiction to consider the petitioner’s claim that the BIA erred by rejecting his proposed particular social group (PSG) of “Brazilian landowners,” finding that the petitioner had failed to exhaust his administrative remedies. (Gomes v. Garland, 11/3/21)
CA1 Upholds BIA’s Affirmance of IJ’s Adverse Credibility Determination Where There Were Numerous Inconsistencies in Petitioner’s Testimony
The court upheld the denial of asylum to the petitioner, holding that substantial evidence supported the IJ’s and BIA’s adverse credibility determination because inconsistencies in petitioner's testimony were cumulatively persuasive of a lack of credibility. (Mashilingi v. Garland, 11/2/21)
CA6 Remands Domestic Violence Asylum Case for Consideration in Light of Vacatur of Matter of A-B- I
The court vacated the BIA’s decision and remanded the case with the direction to consider whether groups pertaining to domestic violence are cognizable particular social groups in light of the vacatur of Matter of A-B- I. (Zometa-Orellana v. Garland, 11/2/21)
CA9 Finds IJ’s Denial of Continuance of Petitioner’s Merits Hearing Violated His Right to Counsel
Applying a fact-based inquiry, the court held that the IJ’s refusal to grant a continuance of the petitioner’s merits hearing deprived him of his right to counsel, and thus granted the petition for review. (Usubakunov v. Garland, 11/1/21)
DHS Releases Memo on Termination of MPP
DHS terminated MPP, effective immediately, after finding that the benefits of MPP are far outweighed by the costs of continuing to the program. DHS will comply with Texas v. Biden, but termination of MPP will be implemented as soon as practicable after the injunction is vacated.
AILA Welcomes Termination Memo Intended to End the “Migrant Protection Protocols” Permanently
AILA welcomed the Biden administration’s memo to terminate the “Migrant Protection Protocols”, with AILA President Allen Orr noting, “May this be the beginning of the final end to this despicable program undermining U.S. asylum law.”
CA7 Upholds BIA’s Conclusion That Petitioner Did Not Face a Substantial Risk of Torture as a Recent Deportee
Upholding the denial of Convention Against Torture (CAT) relief, the court found that the BIA correctly held that the IJ did not make any factual or legal error in finding that the petitioner did not face a substantial risk of torture as a recent deportee. (Mabuneza v. Garland, 10/28/21)
CA7 Upholds Denial of CAT Relief to Petitioner Who Claimed He Was Target in Mafia Extortion Scheme in Honduras
Where petitioner feared that the mafia would target him because he had just returned from the United States, the court upheld the denial of Convention Against Torture (CAT) relief, finding that he was not more likely to be tortured if returned to Honduras. (Pineda-Teruel v. Garland, 10/27/21)
The Fruits of our Afghan Labor Have Arrived
Author Joyce Brake shares insights from her recent pro bono work with Afghan evacuees and helping them find their footing in the new situation they are in; she urges readers to reach out and do the same.
AILA Letter to the Administration on Due Process and Access to Counsel Failures of MPP
AILA sent a letter to the administration following reports that the Laredo and Brownsville tent courts are re-opening as a result of the re-implementation of the Migrant Protection Protocols (MPP). AILA’s letter summarized the past problems and urges the administration issue a new termination memo.
USCIS Report on Backlog Reduction of Pending Affirmative Asylum Cases
USCIS prepared a report pursuant to the FY2021 DHS Appropriations Act that details steps taken to reduce the affirmative asylum backlog including expansion of offices, officer hiring, and use of technology and claiming "last in, first out" interview scheduling helps reduce meritless asylum claims
AILA and Partners Submit Comments on Proposed Changes to Asylum Procedures
AILA, the Council, and Justice Campaign expressed support for the proposal to give asylum officers authority to grant asylum to migrants who pass credible fear interviews and attend hearings with their office but to abandon a proposed streamlined removal hearing.
CA1 Remands Where BIA Denied Withholding of Removal to Honduran Petitioner Based on IJ’s Adverse Credibility Finding
The court held that the BIA’s affirmance of the IJ’s adverse credibility finding as to the Honduran petitioner could not be sustained, and thus vacated and remanded the BIA’s order affirming the denial of the petitioner’s request for withholding of removal. (Lopez Troche v. Garland, 10/18/21)
Presidential Determination on Refugee Admissions for FY2022
President Biden issued a determination on October 8, 2021, setting the refugee admissions ceiling for FY2022 at 125,000. The determination also provides regional ceilings. (86 FR 57527, 10/18/21)
Practice Pointer: What You Need to Know About the Third Country Transit Ban
AILA’s Asylum & Refugee Committee provides an update on the Third Country Transit Ban (Asylum Ban 2.0) and recommendations on cases affected by limitations on eligibility for asylum for people who traveled through a third country before reaching the United States or were illegally “metered” by CBP.
CA3 Finds BIA Misapprehended Applicable Law by Not Considering Religious Persecution Against Chinese Petitioner Cumulatively
Granting the petition for review and remanding, the court held that while the BIA was correct in finding that the petitioner had not suffered political persecution in China, its reasons for rejecting religious persecution were flawed. (Liang v. Att’y Gen., 10/12/21)
Attorney General Refers Matter of Negusie for Review
The attorney general directed the BIA to refer Matter of Negusie for review of the decision. The BIA decision is automatically stayed pending review.
CA7 Upholds Denial of CAT Relief to Petitioner Who Feared Being Removed to Burundi as a Returning Twa Refugee
Where the petitioner claimed that he feared being removed to Burundi because he was a returning Twa refugee and was unable to speak the native language, the court upheld the BIA’s denial of deferral of removal under the Convention Against Torture (CAT). (Nyandwi v. Garland, 10/8/21)
Liaison Update: Key Takeaways from Stakeholder Engagements with DHS Operation Allies Welcome Leadership
The Afghan Response Task Force leadership and AILA National staff have participated in various stakeholder engagements with DHS Operation Allies Welcome leadership regarding the Afghan evacuations. Read these key takeaways from those meetings.
CA7 Upholds Withholding of Removal Denial to Petitioner Who Feared Persecution in Jamaica as a Gay Man
The court held that substantial evidence supported the BIA’s decision that the Jamaican petitioner, who feared that the government might punish him for violating Jamaica’s anti-sodomy laws, did not face a likelihood of state-sanctioned persecution. (Murry v. Garland, 10/7/21)