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 Holds That IJ Articulated Specific and Cogent Reasons for Concluding That Petitioner Was Not Credible
The court upheld the BIA’s affirmance of the IJ’s denial of asylum, finding that the IJ had articulated specific, cogent reasons for concluding that the petitioner’s testimony was not credible, and that those reasons were supported by substantial evidence. (Coto-Albarenga v. Garland, 7/12/21)
CA2 Finds That IJ Considered Sua Sponte the Social Groups Raised by Petitioner on Appeal
The court upheld the BIA’s denial of the petitioner’s withholding of removal claim, finding that the IJ sua sponte considered the social groups now identified by petitioner, and that the IJ’s decision to deny withholding was supported by substantial evidence. (Quintanilla v. Garland, 7/9/21)
CA4 Finds Honduran Petitioner’s Membership in Her Nuclear Family Was At Least One Central Reason for Her Persecution
The court held that the BIA and IJ erred in concluding that the petitioner had failed to demonstrate that she was persecuted in Honduras on account of her membership in her proposed particular social group, namely her nuclear family. (Perez Vasquez v. Garland, 7/9/21)
AILA Supports the Fair Treatment of Asylum Seekers Wrongfully Deported Under the Asylum Cooperative Agreements
On 7/9/21, AILA joined other advocates and partners in calling for procedural measures to allow families and individuals deported to danger in Guatemala under the Asylum Cooperative Agreement program to return and seek protection in the United States.
Takeaways from Johnson v. Guzman Chavez
In this blog post, AILA President-elect Jeremy McKinney highlights the recent Supreme Court decision in Johnson v. Guzman Chavez, which he writes offers a takeaway “for practitioners is to push back when an agency employs Auer or Chevron deference as a shield protecting its faulty administrative dec
CA8 Upholds BIA’s Conclusion That Petitioner Could Reasonably Relocate Within Guatemala to Avoid Vigilante Group
Upholding the denial of withholding of removal, the court found that petitioner had failed to establish membership in a particular social group, and that BIA did not err in determining he could reasonably relocate in Guatemala to avoid a vigilante group. (Bautista-Bautista v. Garland, 7/6/21)
Practice Pointer: AG Garland Precedential Decisions in Matter of A-B- and Matter of L-E-A
AILA’s Asylum & Refugee Committee prepared a practice pointer on Matter of A-B- and Matter of L-E-A’s impact on pending asylum cases and important reminders for claims based on membership in a particular social group. Special thanks to committee member Katie Herbert Meyer.
AILA and the Council Express Concern over President Biden’s Continued Use of Title 42 Expulsion Policy
On 6/30/21, 105 organizations, including AILA and the American Immigration Council expressed alarm and disappointment that the Biden administration is considering plans to continue to use the Title 42 expulsion policy.
BIA Finds IJs and the Board Lack Authority to Recognize the Equitable Defense of Laches in Removal Proceedings
The BIA found respondent did not submit sufficient objective evidence to support his fear of torture by the Rwandan government and that IJs and the Board lack the authority to recognize the equitable defense of laches in removal proceedings. Matter of O-R-E-, 28 I&N Dec. 330 (BIA 2021)
Supreme Court Rules That Detained Noncitizens in Withholding-Only Proceedings Are Not Entitled to Individualized Bond Hearings
The U.S. Supreme Court held that INA §241, not INA §236, governs the detention of noncitizens subject to reinstated orders of removal, meaning that such noncitizens are not entitled to a bond hearing while they pursue withholding of removal. (Johnson, et al. v. Guzman Chavez, et al., 6/29/21)
CA4 Remands Claims for Asylum and Related Relief of 15-Year-Old Salvadoran Who Was Threatened by MS-13 Gang
On rehearing en banc, the court held that where a petitioner is a child at the time of the alleged persecution, IJs and the BIA must take the child’s age into account in analyzing past persecution and fear of future persecution for purposes of asylum. (Portillo-Flores v. Garland, 6/29/21)
CA1 Says BIA Erred in Not Considering Individualized Hardship When It Reversed IJ’s Grant of Adjustment Application
The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21)
D.C. Circuit Affirms Dismissal of Claims by Detained Mothers and Children Challenging Credible Fear Regulations
The D.C. Circuit Court affirmed the district court’s determination that the IIRAIRA barred its review of 10 of the 11 alleged policies, because either the policy was unwritten or the challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21)
DOJ Issues Guidance Regarding Adjudication of Motions to Reopen in MPP Cases
DOJ issued guidance to all immigration court and BIA personnel with information regarding the adjudication of motions to reopen in Migrant Protection Protocols (MPP) cases.
CA4 Upholds Asylum Denial to Honduran Petitioner Convicted of Unlawful Wounding in Virginia
The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21)
Presidential Determination on Unexpected Urgent Refugee and Migration Needs
Presidential determination of 6/11/21 furnishing assistance of up to $46 million from the United States Emergency Refugee and Migration Assistance Fund for the purpose of meeting unexpected urgent refugee and migration needs. (86 FR 32631, 6/22/21)
CA9 Finds Changed Country Conditions Exception Applies Where Personal Circumstances Changed in a Way Entirely Outside Petitioner’s Control
The court held that while a self-induced change in personal circumstances does not qualify for the changed country conditions exception, that principle does not apply when changed country circumstances, while personal to petitioner, are entirely outside her control. (Kaur v. Garland, 6/21/21)
D.C. Circuit Affirms Dismissal of Most Claims Brought by Detained Mothers and Children Challenging Credible Fear Regulations
The court affirmed the district court’s conclusion that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) barred its review of 10 of 11 alleged policies, because the policy was unwritten or challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21)
CA11 Finds BIA Failed to Properly Reconsider Discretionary Denial of Asylum Under 8 CFR §1208.16(e)
The court held that when an applicant is discretionarily denied asylum but granted withholding of removal and the IJ fails to reconsider its discretionary denial of asylum, the BIA must remand for the IJ to conduct this required reconsideration. (Thamotar v. Att’y Gen., 6/17/21)
CA3 Upholds BIA’s Denial of Motion to Reopen CAT Claim Based on Changed Country Circumstances in Jamaica
The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21)
DOJ Vacates Matter of A-B- and Matter of A-B-II
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)
DOJ Vacates Matter of L-E-A- II
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)
DOJ Issues Memo on the Impact of Attorney General Decisions in Matter of L-E-A- and Matter of A-B-
DOJ issued a memo to the Civil Division’s Office of Immigration Litigation on the impact of Attorney General Merrick Garland’s vacation of Matter of L-E-A- (L-E-A- II), Matter of A-B- (A-B- I), and Matter of A-B- II).
AG Garland Vacates Asylum Precedents That Harmed Victims of Violence
AG Garland vacated decisions in Matter of A-B- and Matter of L-E-A-, both of which had arbitrarily overturned years of established case law. By vacating these two decisions, the AG has restored access to asylum for many people fleeing persecution abroad.
Resources Related to Lawsuit Challenging New DHS Asylum EAD Rules
Find resources related to Casa de Maryland, Inc. v. Wolf, a lawsuit filed by immigration advocacy organizations challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers.