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
AILA and Partners Sent Letter to Biden Administration on Legal Limbo of Afghan Evacuees
AILA and partners sent a letter urging the Biden administration to ensure that U.S.-Afghan allies and other at-risk Afghans do not languish in legal limbo abroad. The letter includes several recommendations.
District Court Holds Unlawful U.S. Government’s Practice of Turning Back Asylum Seekers at POEs Along Southern Border
U.S. District Judge Cynthia Bashant of the Southern District of California declared unlawful the government’s practice of systematically denying asylum seekers access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. (Al Otro Lado, Inc. v. Mayorkas, et al. (9/2/21)
CA3 Finds BIA Erred in Denying Motion to Reopen Where IJ Failed to Meaningfully Evaluate Whether Interpreter Was Needed
The court held that the petitioner, who spoke “Pidgin” English, was denied due process, because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. (B.C. v. Att’y Gen., 9/1/21)
CA9 Finds Substantial Evidence Supported Adverse Credibility Determination as to Salvadoran Petitioner Threatened by Gang
The court held that, in making an adverse credibility determination as to petitioner, the IJ was allowed to afford substantial weight to discrepancies associated with a threat by gang members and a report the petitioner procured and submitted to the IJ. (Rodriguez-Ramirez v. Garland, 9/1/21)
CA5 Says Evidence Did Not Compel Conclusion That Honduran Government Officials Would Acquiesce in Petitioner’s Torture
The court upheld the denial of Convention Against Torture (CAT) relief to the petitioner, finding that the evidence did not compel the conclusion that any torture by the MS-13 gang would occur with the consent or acquiescence of Honduran officials. (Tabora Gutierrez v. Garland, 8/31/21)
DHS to Lead Federal Agency Coordinating Efforts to Resettle Vulnerable Afghans
President Biden directed DHS to lead coordinating efforts across the federal government to resettle vulnerable Afghans. Robert J. Fenton, Jr. will lead the interagency Unified Coordination Group, which will offer immigration processing and resettlement support.
CA8 Rejects Petitioner’s Vagueness Challenge to INA §241(b)(3)(B)(ii)’s Non-Per-Se “Particularly Serious Crime” Term
Where the petitioner challenged as unconstitutionally vague INA §241(b)(3)(B)(ii)’s non-per-se “particularly serious crime” (PSC) term, the court found that the statute stands because its text imposes standards that must reference underlying facts. (Mumad v. Garland, 8/27/21)
CA9 Holds That Noncitizens at Reasonable Fear Hearings Before an IJ Are Statutorily Entitled to Counsel
The court held that noncitizens whose removal orders have been reinstated are statutorily entitled to counsel at their reasonable fear hearings before an IJ, but this entitlement is cabined by 8 CFR §208.31(g)’s temporal limitations on IJ review hearings. (Orozco-Lopez v. Garland, 8/25/21)
CA2 Holds That BIA Did Not Err in Finding That Asylum Applicant Could Safely and Reasonably Relocate Within India
The court upheld the BIA’s denial of asylum to petitioner, concluding that the agency properly determined that he could safely relocate within India to avoid the possibility of future persecution or torture and that it would be reasonable to expect him to do so. (Singh v. Garland, 8/25/21)
Supreme Court Fails to Act — Burden on Biden to Undo Inhumane Trump Policy Denying Protection to Asylum Seekers
AILA disagrees with the Supreme Court’s denial of DOJ’s emergency request to halt a lower court ruling requiring the government to restart the Migrant Protection Protocols (MPP), a Trump-era policy that forces asylum seekers to wait in Mexico while their cases are pending in the United States.
Practice Alert: Proposed Rule to Change Asylum Processing for Individuals in Expedited Removal
AILA’s Asylum & Refugee Committee provides a summary of what’s inside EOIR/DHS’s 8/20/21 NPRM and what changes may be coming to the credible fear interview process.
CA11 Upholds Denial of Asylum to Member of Tamil Minority Who Was Arrested and Detained by Sri Lankan Army
The court held that substantial evidence supported the IJ’s and BIA’s conclusion that the harms the Sri Lankan petitioner suffered—including being detained three times, tied to a chair, slapped, and kicked—did not rise to the extreme level of persecution. (Murugan v. Att’y Gen., 8/24/21)
DHS Releases Guidance on Parole for Certain Afghan Nationals Into the U.S.
DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the United States on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.
CA9 Upholds Asylum Denial After Supreme Court Rejected “Deemed-True-or-Credible Rule” as Irreconcilable with INA
On remand from the U.S. Supreme Court, the court concluded that any fair reading of the BIA’s decisions in the case indicated that it did not find the petitioner’s case to be persuasive, and thus that its findings of fact and conclusions were demonstrably reasonable. (Dai v. Garland, 8/20/21)
CA9 Remands for Reconsideration of Mexican Petitioner’s Proposed PSG of “Female Nurses”
Granting the petition for review, the court held that the BIA’s rejection of the Mexican petitioner’s proposed particular social group (PSG) of “female nurses” on the ground that nursing is not an immutable characteristic was unreasonable. (Plancarte Sauceda v. Garland, 8/20/21)
USCIS and EOIR Notice of Proposed Rulemaking on Consideration of Protection Claims by Asylum Officers and Credible Fear Screening
USCIS/EOIR notice of proposed rulemaking under which, among other changes, claims for asylum, statutory withholding of removal, and CAT protection raised by those subject to expedited removal and found to have credible fear would be initially adjudicated by an asylum officer. (86 FR 46906, 8/20/21)
CA2 Upholds Adverse Credibility Determination as to Asylum Applicant Allegedly on Government Blacklist in China
The court held that substantial evidence supported the BIA’s adverse credibility determination as to the petitioner, finding that his failure to disclose until cross-examination his alleged inclusion on a government blacklist in China undermined his credibility. (Liang v. Garland, 8/19/21)
USCIS Reaches Settlement Agreement in “Blank Space Rejection Policy” Case
USCIS reached an agreement in Vangala, et al. v. USCIS, et al., to allow updated receipt dates for immigration benefits and applications or petitions originally rejected under the former “No Blank Space” rejection policy. Affected filers have until 7/20/22 to receive an earlier receipt date.
CA9 Says Vehicle Theft Under California Vehicle Code §10851(a) Is Not an Aggravated Felony
Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)
CA9 Holds That Petitioner Did Not Suffer Past Persecution in India After Considering Non-Exhaustive List of Factors
The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)
AILA’s Asylum & Refugee Committee Requests Meeting Opportunity with the USCIS Asylum Division
AILA’s Asylum & Refugee Committee sent a letter to Associate Director of the USCIS Refugee, Asylum, and International Operations Directorate (RAIO) Jennifer B. Higgins requesting the opportunity meet and discuss policy updates, trends, and issues in the field of asylee and refugee processing.
CA8 Upholds Denial of Deferral of Removal Under the CAT to Somalian Petitioner
Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)
CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)
CA9 Remands for BIA to Consider Petitioner’s Social Group Claim Based on His Perceived Gang Membership
The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)
CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG
The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)