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
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.
CA5 Finds Adverse Credibility Determination Was Supported by Substantial Evidence Apart from Inter-Proceeding Evidence
Despite misgivings about the IJ’s reliance on inter-proceeding evidence under Matter of R-K-K-, the court held that the IJ’s adverse credibility finding was supported by substantial evidence, and that the petitioner’s due process claims lacked merit. (Singh v. Garland, 12/17/21)
DHS Announces Commitment to Enhance Protections for Stateless Individuals
DHS announced it will commit to adopting a definition of statelessness for immigration purposes and enhance protections for stateless individuals. DHS plans to identify its barriers to legally available immigration relief and benefits, and build a process for making stateless determinations.
CA1 Upholds CAT Denial to Petitioner Who Claimed He Would Be Subject to Torture While “Imprisoned” in Haiti as a Criminal Deportee
Upholding the denial of petitioner’s Convention Against Torture (CAT) claim, the court found that expert testimony concerning treatment in Haiti of criminal deportees did not address whether petitioner was more likely than not to be held in prolonged detention. (Bonnet v. Garland, 12/13/21)
USCIS Rescinds Policy Requiring Interviews of All Petitioners Filing Form I-730
USCIS will rescind a November 2020 policy requiring interviews of all petitioners filing Form I-730, deemed inconsistent with EO 14012 and 14013. Effective 12/10/21, USCIS will make case-by-case determinations on whether to interview Form I-730 petitioners.
Resources on Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications
Learn more about the Mendez Rojas v. Wolf final settlement. Following the district court’s approval of the settlement agreement, USCIS has begun sending notices to potential class members on how they can benefit from the injunction and on the 4/22/22 filing deadline.
Tackling Inequality – a Human Rights Day Reflection
In this blog post, part of the Diversity, Equity and Inclusion Committee's blog post series, AILA member Roland Luo shares insights about the importance of International Human Rights Day and what we can each do to give meaning to the universality of human rights.
TRAC Report Finds Asylum Success Varies Widely Across Immigration Judges
TRAC released a report finding that asylum outcomes vary significantly from judge to judge and court to court. Findings include that half of all asylum cases are decided by just six immigration courts, and the majority of immigration judges have an asylum denial rate of 70% or more.
AILA and Partners Send Letter to USCIS and ICE on Access to Client Records
AILA and partners sent a letter requesting that USCIS, ICE, and EOIR revise its regulations, policies, practices, and procedures for providing access to records of proceedings (ROPs) and digital audio recordings (DARs) and Alien Files (“A-Files”) in immigration court and USCIS proceedings.
CA3 Says Failure to Include Date and Time of Hearing in NTA Did Not Require Termination of Removal Proceedings
The court held that the BIA properly denied petitioner’s motion to terminate removal proceedings even though her Notice to Appear lacked a specific date and time, and found that “Guatemalan women” was not a cognizable particular social group (PSG). (Chavez-Chilel v. Att’y Gen., 12/9/21)
Practice Pointer: “Operation Horizon” and What to Do with Your Client’s Notice to Report (Form I-385)
AILA’s Asylum & Refugee Committee provides a practice pointer on the rollout of ICE’s “Operation Horizon” and how attorneys representing individuals who were never placed into removal proceedings upon release from CBP custody may be impacted.
ICYMI: AILA Quicktake #309 : Biden Administration Re-Instates MPP
The Biden administration announced that they will be re-implementing the Trump-era policy Migrant Protection Protocols (MPP) starting on Monday December 6, 2021. AILA’s Jen Whitlock explains how we got here, what are some of the changes to the program, and what to expect next.
CA10 Remands to BIA to Reconsider Asylum/Withholding/CAT Applications and to Apply the Clear-Error Standard
The court held that the BIA erred in (1) overturning the IJ’s grant of asylum, (2) rejecting the IJ’s credibility findings without applying the clear-error standard, and (3) sua sponte finding petitioner ineligible for withholding or deferral of removal. (Villegas-Castro v. Garland, 12/2/21)
DHS Releases Guidance on Court-Ordered Reimplementation of MPP
DHS reimplemented the Migrant Protection Protocols (MPP), stating that DHS made a number of changes from the previous implementation to address concerns that Mexico raised and Mexico agreed to accept the return of individuals on 12/2/21. DHS will begin enrolling certain noncitizens into MPP.
AILA Deeply Disappointed in Even Temporary Resurrection of MPP
AILA is deeply disappointed that politically motivated Attorneys General of Missouri and Texas have managed to temporarily resurrect the inhumane “Migrant Protection Protocols” known as Remain in Mexico, noting the result will be to undermine U.S. asylum laws and traumatize vulnerable immigrants.
DOS Delegation of Authority to Facilitate USCIS Teleconference Interviews for Refugee Applicants
DOS delegation from the Secretary of State to the to the assistant secretary for Bureau of Population, Refugees, and Migration the authority to designate DOS employees as immigration officers to facilitate USCIS video teleconference interviews of overseas refugee applicants. (86 FR 68295, 12/1/21)
CA9 Remands Asylum Claim of Indian Petitioner to Consider Whether Certain Factors Sufficed to Support Credibility Determination
The court held that the bulk of the IJ’s and BIA’s adverse credibility findings in the case were infirm, and remanded to the BIA to determine whether the few remaining factors were sufficient, in light of the totality of circumstances, to support such a finding. (Kumar v. Garland, 11/30/21)
Asylee and Refugee Resources from DOJ's Immigrant and Employee Rights Section
AILA's Refugee and Asylum Committee highlights some resources from DOJ's Immigrant and Employee Rights Section that may be useful to AILA members and their clients. Don't miss an upcoming DOJ free webinar on December 8, aimed at refugee and asylee service providers.
Practice Alert: Asylum Office Points of Contact for Credible Fear Interviews
AILA provides asylum office points of contact for credible fear interview requests. Members can reach out to these individuals regarding general CFI and RFI requests (scheduling, G-28 submissions, and accommodation requests).
CA9 Finds BIA Erred by Failing to Assess Individualized Risk of Persecution as to Evangelical Christians in Indonesia
Granting the petition for review, the court held that the BIA erred by failing to assess the petitioners’ individualized risk of persecution in Indonesia to establish eligibility for asylum and related relief due to their identity as evangelical Christians. (Nababan v. Garland, 11/23/21)