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
Climate Refugees Are Here
AILA member Christine Popp shares more about her recent article in the AILA Law Journal on climate refugees, explaining how she became interested in the intersection of immigration/ asylum law and climate change realities and what she hopes her article offers for practitioners.
TRAC Finds Over 8,000 MPP Cases Transferred into United States Under Biden
TRAC found that as of the end of April 2021, 8,387 individuals under MPP have been able to enter the U.S. since the program was ended. TRAC also provided data on pace of transfers by location, pending case times, and nationality; percent of cases with representation; and hearing locations.
EOIR Provides Information for Individuals Who Have Come to the U.S. After Waiting in Mexico for Hearings Under MPP
EOIR provided a flyer with instructions for individuals who have come to the United States after waiting in Mexico under the Migrant Protection Protocols (MPP). The flyer provides information on the individuals’ responsibilities and phone numbers to reach the immigration court helpdesk.
CA3 Finds Sri Lankan Army’s Mistreatment of Petitioner Did Not Rise to Level of Past Persecution
The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21)
President Biden Raises Annual Refugee Admissions Cap to 62,500 for FY2021
President Biden issued a memorandum raising the number of refugee admissions permissible for FY2021 to 62,500. The memorandum also readjusts FY2021 allocations. (85 FR 24475, 5/7/21)
Adjectives Matter: What Does “Exceptional and Extremely Unusual Hardship” Mean?
AILA Member Eva Loney writes about the importance of adjectives in immigration law, specifically what “exceptional“ and “extremely unusual“ mean when considered in a removal case, highlighting why her article on the topic in the Spring AILA Law Journal was important to share.
Iranians Forced Into Military Service Face Immigration Blockade
AILA member Scott Emerick details litigation recently filed to ensure Iranian nationals forced to serve in the Islamic Revolutionary Guard Corps aren't harmed by the U.S. government's decision to retroactively name it a terrorist organization.
DHS Secretary Ratifies Rule Removing 30-Day EAD Processing Requirement for Asylum Applicants
DHS Secretary Mayorkas ratified prior delegable actions and decisions regarding the approval, issuance, signing, and publication of the Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications rulemaking.
CA9 Holds That Petitioner’s Asylum Application Was Abandoned Based on Her Failure to Submit Required Biometrics
The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21)
CA7 Upholds Denial of Asylum to Petitioner Who Feared Retaliatory Gang Violence in Mexico
The court concluded that the petitioner had raised no arguments against the BIA’s dispositive determination that his asylum application was statutorily time-barred, and found that substantial evidence supported the BIA’s denial of withholding of removal. (Guzman-Garcia v. Garland, 5/3/21)
DHS Announces Family Reunifications to Begin First Week of May
DHS announced family reunifications will begin first week of May. Per DHS, the Family Reunification Task Force has been working to establish a database of separated families, correct inaccuracies in files, and build the process to find every family. The task force’s initial report is due 6/2/21.
DHS Releases Privacy Impact Assessment for Processing Individuals Subject to MPP
DHS Released a PIA to assess the privacy risks associated with the biometric and biographic information collected to process individuals enrolled in MPP. CBP will use technology solutions, including facial recognition technology, to verify MPP enrollment and case status and to streamline processing.
Helping Asylees Find Welcome
In this blog post, AILA Law Journal authors Ben Levey and Rachel Zoghlin of HIAS share how they came to write about the reasons why asylees aren't accessing benefits they are eligible for, and policy recommendations to effect change and help clients.
TRAC Finds 40 Languages Spoken Among Asylum Seekers with Pending MPP Cases
TRAC found that at least 40 different languages are spoken by the nearly 30,000 migrants with pending MPP cases. Ninety-seven percent spoke Spanish, and 1.7 percent spoke Portuguese. Slightly more than one percent, or 337 in total, were recorded as speaking indigenous and other rare languages.
Emergency Presidential Determination on Refugee Admissions for FY2021
President Biden issued a determination revising the allocations for refugee admissions for FY2021 and maintaining the refugee admissions ceiling at 15,000. The memo notes that a subsequent determination may be issued if the ceiling is reached before the end of the fiscal year. (86 FR 21159, 4/22/21)
TRAC Finds More Than 85 Percent of MPP Cases Still Remain in MPP Courts
TRAC found that even though 4,000 MPP cases were transferred away from the border in February and March, more than 85 percent, or 22,521, of the 26,432 pending cases in MPP courts at the end of January have not been recorded as transferred out of an MPP court by the end of March.
Coercive Population Control and Immigration Law
AILA member Sylvia Miller shares insights into why she wrote for the Spring 2021 edition of the AILA Law Journal, “Ultimately my hope is that this article helps continue and broaden conversations, both within the legal community and between attorneys and our clients“ about coercive population
The Arab American Struggle for an Inclusive Immigration System
AILA member and Executive Director of NIPNLG Sirine Shebaya writes for Think Immigration about how we must ensure administrations “understand the complexity and diversity of our Arab American community and uphold our values of compassion and respect for everyone's rights in both word and policy.R
AILA, ASISTA, and Tahirih Justice Center Submit Comments on Form I-290B, Notice of Appeal or Motion
AILA, ASISTA, and the Tahirih Justice Center submitted comments on Form I-290B, expressing concerns regarding limits on appellate review after a motion and appeals that must address all grounds of ineligibility. The groups also requested clarification regarding derivative applicants and denials.
AILA and Partners Submit Amicus Brief Arguing That the BIA’s Narrow Reading of the Nexus Requirement Restricts Meritorious Claims Brought by Transgend
AILA and partners submitted an amicus brief urging the Ninth Circuit to vacate the BIA’s decision to deny a transgender Mexican woman asylum and withholding, arguing that the BIA’s too-narrow nexus requirement, left-standing, will drastically restrict meritorious claims brought by transgender women.
AILA and Partners Urge the Attorney General and DHS Secretary to Create a Welcoming, Effective, and Timely Asylum System
AILA and partners sent a letter to DHS Secretary Mayorkas and AG Garland with recommendations on how to receive and screen migrants seeking safety in the United States in a humane and orderly fashion, including expanding legal counsel programs and using initial asylum interviews at the border.
CA8 Says “Serious Reasons for Believing” Standard Under INA §208(b)(2)(A)(iii) Requires a Finding of Probable Cause
Where BIA had denied asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Garland, 2/3/21, amended 4/15/21)
CA9 Concludes IJ’s Adverse Reasonable Fear of Torture Determination Was Not Supported by Substantial Evidence
Granting the petition for review and remanding, the court held that the IJ’s decision to affirm the asylum officer’s adverse reasonable fear of torture determination as to the Honduran petitioner was not supported by substantial evidence. (Alvarado-Herrera v. Garland, 4/13/21)
CRS Releases Report on the Law of Asylum Procedure at the Border
CRS released a report on the law of asylum procedure at the border, including on the expedited removal and credible fear process; DHS implementation of the statutory framework; Trump administration policies pre- and post-pandemic; regulatory outlook under the Biden administration; and more.
AILA Submits Amicus Brief on Materiality of Evidence of Changed Country Conditions
AILA submitted an amicus brief in the first circuit arguing that the court should adopt a “logical connection” test as the proper analysis for materiality of evidence of changed country conditions in the context of a motion to reopen. The brief also discusses the prima facie eligibility requirement.