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
AILA Joins Sign-On Letter Urging the Administration to End Title 42 Expulsions and MPP
After a federal district court held that the government likely does not have authority to implement the Title 42 policy and enjoined the use of the policy against families with young children, AILA urged the administration to stop blocking asylum seekers and restore access at our ports of entry.
Second Extension of Effective Date of USCIS Temporary Final Rule on Interpreters at Asylum Interviews
USCIS temporary final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was set to expire on 9/20/21, through 3/16/22. (86 FR 51781, 9/17/21)
BIA Finds Conviction Does Not Bar Respondent from Seeking a 212(h) Waiver
The BIA remanded record to IJ for further proceedings after finding that a person who enters as a refugee and later adjusts is not precluded from establishing eligibility for a 212(h) waiver. Matter of N-V-G-, 28 I&N Dec. 380 (BIA 2021)
AILA and Partners Send Letter Urging the Administration to Stop Blocking Asylum Seekers
AILA joined 71 organizations in sending a letter in response to the notice of appeal in the Huisha-Huisha litigation urging the administration to restore access to U.S. asylum at ports of entry and immediately stop blocking and expelling asylum seekers and migrants.
District Court Orders Border Officials to Stop Expelling Certain Families under Title 42
The court granted motions for class certification and preliminary injunction (the PI was stayed for 14 days), to prevent U.S. border officials from using Title 42 to expelling families with young children seeking asylum. (Huisha-Huisha, et al. v. Mayorkas, 9/16/21)
AILA President Allen Orr Responds to Today’s Court Decision on Title 42
AILA President Allen Orr responded to Judge Sullivan’s ruling that the use of Title 42 against families with young children seeking asylum is illegal, noting the U.S. “can and must protect public health while honoring our humanitarian values and policies that offer protection to asylum seekers.”
USCIS Updates Policy Guidance on Refugee and Asylee Adjustment of Status Interviews
USCIS released updated policy guidance, effective 9/16/21, revising the criteria that applies when determining whether to refer an asylee or refugee adjustment applicant for an interview. Policy also includes criteria relating to a principal applicant’s underlying asylum claim.
We Know Litigation Works, But How Do You Get Started?
In this blog post, expert litigator and past AILA president Ron Klasko gives a few examples of cases that could benefit from litigation, and highlights the upcoming Federal Court Conference as a chance to learn skills to help your clients.
DOS and DHS Release Statement on CAM Application Approval
DOS and DHS released a statement announcing that the Central American Minors (CAM) program will begin accepting new applications as of 9/14/21. Statement also included a reminder that eligibility for the program was also expanded.
CA9 Says IJ Provided Sufficient Safeguards During Removal Proceedings to Accommodate Petitioner’s Mental Illness
The court held that petitioner, a lawful permanent resident who had been found mentally incompetent, had received adequate safeguards in his removal proceedings, and had failed to exhaust his claim regarding the IJ’s “particularly serious crime” determination. (Benedicto v. Garland, 9/9/21)
CA9 Concludes IJ’s Finding That Petitioner Was Not a Christian Was Unsupported by Substantial Evidence (Withdrawn)
The court held that the law-of-the-case doctrine did not require it to accept a prior panel’s determination that the petitioner was not a Christian, and found he was not required to reattach his application for relief to his motion to reopen. (Etemadi v. Garland, 9/9/21, withdrawn 6/23/22)
CA9 Holds That Single Factor Rule Conflicts with REAL ID Act of 2005
The en banc court overruled prior circuit precedents establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination by the BIA if one of the agency’s identified grounds was supported by substantial evidence. (Alam v. Garland, 9/8/21)
CA11 Finds Petitioner Failed to Preserve Whether His Defective NTA Violated BIA’s Claim-Processing Rules
The court held that petitioner had failed to preserve whether his defective Notice to Appear (NTA) violated BIA’s claim-processing rules, and found he was removable for his controlled substance conviction, or alternatively, his second-degree assault conviction. (Farah v. Att’y Gen., 9/8/21)
CA9 Upholds BIA’s Refusal to Allow Petitioner to Seek Asylum in Light of Reinstatement of His Prior Removal Order
The court held that because the petitioner’s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, to decline to reinstate that order. (Iraheta-Martinez v. Garland, 9/7/21)
AILA and Partners Sent Letter to Biden Administration on Legal Limbo of Afghan Evacuees
AILA and partners sent a letter urging the Biden administration to ensure that U.S.-Afghan allies and other at-risk Afghans do not languish in legal limbo abroad. The letter includes several recommendations.
District Court Holds Unlawful U.S. Government’s Practice of Turning Back Asylum Seekers at POEs Along Southern Border
U.S. District Judge Cynthia Bashant of the Southern District of California declared unlawful the government’s practice of systematically denying asylum seekers access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. (Al Otro Lado, Inc. v. Mayorkas, et al. (9/2/21)
CA3 Finds BIA Erred in Denying Motion to Reopen Where IJ Failed to Meaningfully Evaluate Whether Interpreter Was Needed
The court held that the petitioner, who spoke “Pidgin” English, was denied due process, because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. (B.C. v. Att’y Gen., 9/1/21)
CA9 Finds Substantial Evidence Supported Adverse Credibility Determination as to Salvadoran Petitioner Threatened by Gang
The court held that, in making an adverse credibility determination as to petitioner, the IJ was allowed to afford substantial weight to discrepancies associated with a threat by gang members and a report the petitioner procured and submitted to the IJ. (Rodriguez-Ramirez v. Garland, 9/1/21)
CA5 Says Evidence Did Not Compel Conclusion That Honduran Government Officials Would Acquiesce in Petitioner’s Torture
The court upheld the denial of Convention Against Torture (CAT) relief to the petitioner, finding that the evidence did not compel the conclusion that any torture by the MS-13 gang would occur with the consent or acquiescence of Honduran officials. (Tabora Gutierrez v. Garland, 8/31/21)
DHS to Lead Federal Agency Coordinating Efforts to Resettle Vulnerable Afghans
President Biden directed DHS to lead coordinating efforts across the federal government to resettle vulnerable Afghans. Robert J. Fenton, Jr. will lead the interagency Unified Coordination Group, which will offer immigration processing and resettlement support.
CA8 Rejects Petitioner’s Vagueness Challenge to INA §241(b)(3)(B)(ii)’s Non-Per-Se “Particularly Serious Crime” Term
Where the petitioner challenged as unconstitutionally vague INA §241(b)(3)(B)(ii)’s non-per-se “particularly serious crime” (PSC) term, the court found that the statute stands because its text imposes standards that must reference underlying facts. (Mumad v. Garland, 8/27/21)
CA9 Holds That Noncitizens at Reasonable Fear Hearings Before an IJ Are Statutorily Entitled to Counsel
The court held that noncitizens whose removal orders have been reinstated are statutorily entitled to counsel at their reasonable fear hearings before an IJ, but this entitlement is cabined by 8 CFR §208.31(g)’s temporal limitations on IJ review hearings. (Orozco-Lopez v. Garland, 8/25/21)
CA2 Holds That BIA Did Not Err in Finding That Asylum Applicant Could Safely and Reasonably Relocate Within India
The court upheld the BIA’s denial of asylum to petitioner, concluding that the agency properly determined that he could safely relocate within India to avoid the possibility of future persecution or torture and that it would be reasonable to expect him to do so. (Singh v. Garland, 8/25/21)
Supreme Court Fails to Act — Burden on Biden to Undo Inhumane Trump Policy Denying Protection to Asylum Seekers
AILA disagrees with the Supreme Court’s denial of DOJ’s emergency request to halt a lower court ruling requiring the government to restart the Migrant Protection Protocols (MPP), a Trump-era policy that forces asylum seekers to wait in Mexico while their cases are pending in the United States.
Practice Alert: Proposed Rule to Change Asylum Processing for Individuals in Expedited Removal
AILA’s Asylum & Refugee Committee provides a summary of what’s inside EOIR/DHS’s 8/20/21 NPRM and what changes may be coming to the credible fear interview process.