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
Negligence and Mayhem – We Need to Phase Out the Use of Migrant Detention
In this blog post, Sarah Owings shares the realities of what immigration detainees face and why she wants “you to push for fair and humane ways to process people's' immigration paperwork, outside of detention“ so the detention machine can be shut down entirely.
BIA Issues Ruling on Changed Circumstances Exception to the One-Year Filing Bar for Asylum Applications
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021)
DHS Provides Initial Progress Report on the Interagency Task Force on the Reunification of Families
The Interagency Task Force on the Reunification of Families, in response to the prior administration’s use of immigration laws to intentionally separate children from their families, submitted its initial 120-day progress report on its accomplishments and ongoing challenges.
CA8 Upholds Denial of Asylum to Honduran Petitioner After Finding Her PSG of Family Membership Was Not a Central Reason for Threats
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21)
The Mixed Messages and Missed Opportunities in Biden’s FY 22 Budget
In this blog post, AILA Government Relations Directors Gregory Chen and Sharvari Dalal-Dheini highlight the mixed messages and missed opportunities on immigration issues in the Fiscal Year 2022 budget released by President Biden.
CA11 Finds Salvadoran Petitioner Whose Family Was Targeted by Gang Failed to Satisfy Nexus Requirement for Asylum
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21)
DHS Terminates the Migrant Protection Protocols Program
DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP.
Supreme Court Rejects Ninth Circuit’s “Deemed-True-or-Credible Rule” as Irreconcilable with the INA
The U.S. Supreme Court held that the Ninth Circuit’s rule stating that, in the absence of an explicit adverse credibility determination by the IJ or BIA, a reviewing court must treat a noncitizen’s testimony as credible and true could not be reconciled with the INA. (Garland v. Dai, 6/1/21)
EOIR Announces Dedicated Docket Process for More Expeditious Immigration Hearings
EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.
Practice Alert: Red Notices and the Application of the Serious Non-Political Crime Bar
AILA’s DOS Committee provides a practice pointer on the increase in ICE’s targeting and detention of non-citizens with INTERPOL Red Notices especially in cases involving asylum applicants.
Law Scholars Urge DOJ and DHS to Adopt Protective Regulations Related to Nonstate Actor Persecution
One hundred law scholars sent a letter to DOJ and DHS on the state protection element of the refugee definition, urging regulations that provide that, once an applicant establishes past persecution, the burden shifts to DHS to show that the state is willing and able to prevent future persecution.
Practice Alert: DHS Secretary Ratifies Rule Removing 30-Day Initial EAD Processing Requirement for Asylum Seekers
AILA’s Asylum and Refugee Committee explains the recent ratification of a rule that removed a 30-day processing requirement for initial EAD applications based on a pending asylum application. The alert highlights the benefits of CASA and ASAP membership as they are exempted from this ratification.
What President Biden’s Budget Should Say on Immigration
AILA's Government Relations directors Greg Chen and Shev Dalal-Dheini lay out what President Biden's budget for FY22 should have in it on immigration issues, flagging detention, representation, immigration courts, USCIS, and the State Department as areas ripe for necessary reform.
CA4 Holds That IJs Have a Duty to Develop the Record in Immigration Court Proceedings
The court held that IJs have a legal duty to fully develop the record—a duty which becomes particularly important in pro se cases, and which extends to proceedings in which noncitizens articulate a proposed particular social group (PSG). (Arevalo Quintero v. Garland, 5/26/21)
CA9 Affirms Denial of Deferral of Removal to Jamaican Petitioner Who Claimed She Suffered Physical Abuse by Former Domestic Partner
Upholding the BIA’s denial of deferral of removal under the Convention Against Torture (CAT), the court held that the record did not compel a finding that it was more likely than not that the petitioner would suffer future torture if she returned to Jamaica. (Dawson v. Garland, 5/26/21)
AILA and Partners Send Letter Requesting DOJ and EOIR to Repeal the EOIR Fee Rule
AILA and partners sent a letter requesting DOJ and EOIR to repeal the EOIR fee rule that imposes draconian fee increases for critical immigration filings, and to ensure that any further rulemaking involving fees in EOIR proceedings does not deny due process or access to asylum to any person.
Practice Pointer: Suggested Handling of Misdirected Mendez Rojas Notices
Following reports of misdirected Mendez Rojas notices, AILA’s USCIS Case Assistance Committee provides guidance for returning such notices to USCIS and information regarding the Mendez Rojas class action.
Lingering Trump Policy Changes Continue Harming Trafficking Survivors
Corie O'Rourke, Cory Sagduyu, and Katherine Soltis reflect on their article in the Spring 2021 edition of the AILA Law Journal focused on USCIS's misinterpretation of the T visa's physical presence requirement and why the policy changes must be reversed so trafficking survivors can be protected.
EOIR Releases Workload and Adjudication Statistics
EOIR released workload adjudication statistics, including statistics on caseload, credible fear, reasonable fear, and asylum rates, detention time frames, in absentia orders, IJ corps, motions, representation rates, UAC, VTC hearings, hearing language, FOIA receipts, OCAHO receipts, and BIA appeals.
EOIR Rescinds and Cancels Policy Memoranda 19-02 and 19-03
EOIR rescinded and canceled the following policy memoranda: PM 19-02, Guidelines Regarding New Regulations Governing Asylum and Protection Claims, and PM 19-03, Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.
EOIR Cancels PM 19-12 on Guidelines for Adjudicating Asylum and Protection Claims
EOIR rescinded and canceled PM 19-12, Guidance Regarding New Regulations Governing Asylum and Protection Claims. Per EOIR, the revocation is consistent with existing court orders and Executive Order 14010 of February 2, 2021.
EOIR Cancels PM 20-04 on the Implementation of Asylum Cooperative Agreements
EOIR rescinded and canceled PM 20-04, Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements. Per EOIR, the revocation is consistent with Executive Order 14010 and the suspension and forthcoming termination of the Asylum Cooperative Agreements.
EOIR Cancels PM 21-09 Setting Policy and Procedures for Asylum, Withholding, and CAT Protection
EOIR rescinded and canceled PM 21-09, Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews. Per EOIR, the revocation is consistent with existing court orders and Executive Orders 14010 and 14012.
CA5 Says Attorney General Interpreted INA §208(b)(2)(A)(iv) in Matter of A-H- Correctly as a Matter of Law
Where the government had ordered petitioner removed after he threatened to commit an act of terrorism, the court held that the Attorney General had interpreted INA §208(b)(2)(A)(iv) correctly, and thus that the government had lawfully terminated his asylum status. (Mirza v. Garland, 5/12/21)
CBP Provides Data on Migrant Protection Protocols
CBP provided data on Migrant Protection Protocols from FY2021, including southwest border enrollments, cases referred to USCIS, data from EOIR related to the outcome of MPP cases, and individuals apprehended entering the U.S. without inspection subsequent to being returned to Mexico through MPP.