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
CA1 Remands Asylum Claim of Cuban Petitioner Who Claimed He Was Targeted for His Anti-Castro Political Beliefs
The court vacated and remanded the BIA’s decision affirming the IJ’s adverse credibility determination, finding that alleged discrepancies between the petitioner’s interview account and his hearing account failed to support the adverse credibility finding. (Cuesta-Rojas v. Garland, 3/15/21)
CA9 Holds That Petitioner Failed to Show Changed Country Conditions in Mexico Since His 2003 Removal Order
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen after determining that the petitioner had failed to present evidence demonstrating that country conditions in Mexico had changed since his 2003 removal order. (Rodriguez v. Garland, 3/15/21)
CA9 Remands CAT Claim of Honduran Petitioner Based on Evidentiary Issue Related to DOS Country Report
The court remanded petitioner’s Convention Against Torture (CAT) claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, DOS’s Country Report, yet the BIA’s decision did not take it into account. (Aguilar-Osorio v. Garland, 3/15/21)
CA9 Finds Proposed Social Group of “Salvadoran Women Who Refuse to Be Girlfriends of MS Gang Members” Is Not Cognizable
The court held that substantial evidence supported the BIA’s determination that the Salvadoran petitioner had failed to establish past harm rising to the level of persecution, and concluded that her proposed social groups were not cognizable. (Villegas Sanchez v. Garland, 3/11/21)
CA1 Finds BIA Erred in Failing to Assess Whether Conditions for Members of Democratic Party in Albania Have Deteriorated Since 2006
Where the petitioner cited two post-2006 events as evidence of changed country conditions, the court held that the BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious, and reversed the BIA’s denial of his motion to reopen. (Lucaj v. Wilkinson, 3/10/21)
EOIR to Open Houston – Greenspoint Park Immigration Court
EOIR announced it will expand its presence in Houston on March 15, 2021, by adding a new immigration court on Greenspoint Park Drive. Notice contains the court’s address, hours or operation, and telephone number.
AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic
This page tracks historical updates related to EOIR’s operational status during the coronavirus pandemic. Please note that this page is not updated in real time.
CA4 Finds BIA Improperly Discounted Honduran Petitioner’s Corroborating Evidence in Support of Asylum Claim
Where petitioner asserted that she and her husband had been subjected to death threats by a gang in Honduras, the court held that the BIA had improperly discounted her corroborating evidence, including affidavits, burial permits, and other documentation. (Arita-Deras v. Wilkinson, 3/4/21)
CA9 Says BIA Erred in Finding Somalian Petitioner Did Not Qualify for Exception to Firm Resettlement Bar
The court held that the BIA erred in finding that the petitioner did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he had suffered past persecution in Somalia on account of a protected ground. (Aden v. Wilkinson, 3/4/21)
Practice Advisory: Information for Attorneys Representing Clients Currently in the Migrant Protection Protocols (MPP)
AILA's Asylum and Refugee Committee provides a practice advisory on the operation and implementation of the initial phase of the MPP wind down, including information on how to register and assist eligible individuals for processing from Mexico into the U.S. for further removal proceedings.
DHS Begins Processing Individuals in Mexico with Active MPP Cases
DHS announced that it has begun a phased approach to processing individuals returned to Mexico with active MPP cases. On February 23, 2021, DHS announced that it will begin processing current residents of the Matamoros camp in Mexico.
CA2 Says Petitioner’s Belief That Gangs Are Bad for His Town and Country Is Not a Political Opinion for Asylum Purposes
The court held that the petitioner’s negative view of gangs did not amount to a political opinion for asylum purposes, and that substantial evidence supported the BIA’s decision that he did not establish a likelihood of future torture in El Salvador. (Zelaya-Moreno v. Wilkinson, 2/26/21)
DHS Releases FAQs on MPP Processing
DHS released a webpage with FAQs on the processing of individuals in Mexico with active MPP cases. Among other things, the FAQs address what has changed with regards to MPP, the general steps in the new process, who is able to use the process, protections against COVID-19, and more.
CA9 Finds BIA Erred in Asylum Nexus Analysis as to Petitioner Who Fled Mexico Due to Drug Cartel’s Threats
Granting in part the petition for review, the court concluded that substantial evidence did not support the BIA’s determination that petitioner was not persecuted on account of her membership in her proposed social groups—her family and property owners. (Naranjo Garcia v. Wilkinson, 2/18/21)
District Court Grants Preliminary Injunction in Third Country Transit Ban Litigation
A district court granted a preliminary injunction preventing the government from implementing the Third Country Transit Ban final rule and ordering the return to the pre-Final Rule practices for processing asylum applications. (East Bay Sanctuary Covenant vs. Barr, 2/16/21)
District Court Enjoins DHS from Applying MPP to Seven Asylum Seekers Who Were Returned to Mexico
The U.S. District Court for the District of Massachusetts issued a preliminary injunction requiring DHS to rescind the orders returning seven asylum-seeking plaintiffs to Mexico pursuant to the Migrant Protection Protocols (MPP). (Bollat Vasquez, et al. v. Mayorkas, et al., 2/13/21)
Resources Related to Rosario v. USCIS
Resources related to Rosario v. USCIS, the nationwide class action that resulted in an order requiring USCIS to adjudicate initial EAD applications by asylum applicants within the 30 days including the impact of Casa de Maryland, Inc. v. Wolf.
AILA and Cardozo Law School Provide Recommendations for Removing Non-Priority Cases from the Immigration Court Backlog
AILA's Greg Chen and Cardozo Law School's Peter Markowitz provided recommendations to DOJ and EOIR leadership on how immigration courts can use existing federal regulation and other authorities to presumptively shift cases off the docket by identifying specific categories of non-priority matters.
Remote Attorney or Representative Video-Facilitated Participation in an Affirmative Asylum Interview at USCIS Miami Asylum Office (2/10/21)
Opt-in e-sign form to be used in remote attorney or representative video-facilitated participation in an affirmative asylum interview at the USCIS Miami Asylum Office.
CA9 Holds That “Minor Christian Males Who Oppose Gang Membership” Is Not a Particular Social Group
Upholding the BIA’s denial of asylum and related relief, the court found that the petitioner’s proposed particular social group (PSG) comprised of “minor Christian males who oppose gang membership” was not a cognizable PSG. (Santos-Ponce v. Wilkinson, 2/10/21)
FAQs on Rosario v. USCIS that Ensures Timely Adjudication of EADs Filed by Initial Asylum Applicants
The American Immigration Council and advocates provide updated FAQs on Rosario v. USCIS, a national class action in which a district court ruled USCIS must adjudicate asylum applicant’s initial EAD applications within 30 days.
CA1 Upholds Adverse Credibility Determination as to Ecuadorian Asylum Seeker Based on Inconsistencies in the Record
The court held that substantial evidence supported the BIA’s decision affirming the IJ’s adverse credibility determination, reasoning that discrepancies in the record warranted a finding that petitioner had testified untruthfully about his asylum claim. (Zaruma-Guaman v. Wilkinson, 2/9/21)
CA9 Says “Mexican Wealthy Business Owner” Is Not a Particular Social Group
Denying in part the petition for review, the court held that petitioner’s proposed particular social group (PSG) of “Mexican wealthy business owners” was not cognizable because it lacked social distinction, particularity, or an immutable characteristic. (Macedo Templos v. Wilkinson, 2/9/21)
USCIS Launches Pilot Program to Facilitate Attorney or Representative Remote Participation in an Asylum Interview
USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices.
White House Issues Executive Order on Enhancing Refugee Resettlement Programs and Planning for the Impact of Climate Change on Migration
Executive Order issued 2/4/21, revoking certain presidential actions on refugee admissions and resettlement, and directing government agencies to take steps to improve URSAP; to review SIV programs; and to submit a report on climate change and its impact on migration. (86 FR 8839, 2/9/21)