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
CA11 Upholds Denial of Asylum to Member of Tamil Minority Who Was Arrested and Detained by Sri Lankan Army
The court held that substantial evidence supported the IJ’s and BIA’s conclusion that the harms the Sri Lankan petitioner suffered—including being detained three times, tied to a chair, slapped, and kicked—did not rise to the extreme level of persecution. (Murugan v. Att’y Gen., 8/24/21)
DHS Releases Guidance on Parole for Certain Afghan Nationals Into the U.S.
DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the United States on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.
USCIS and EOIR Notice of Proposed Rulemaking on Consideration of Protection Claims by Asylum Officers and Credible Fear Screening
USCIS/EOIR notice of proposed rulemaking under which, among other changes, claims for asylum, statutory withholding of removal, and CAT protection raised by those subject to expedited removal and found to have credible fear would be initially adjudicated by an asylum officer. (86 FR 46906, 8/20/21)
CA9 Upholds Asylum Denial After Supreme Court Rejected “Deemed-True-or-Credible Rule” as Irreconcilable with INA
On remand from the U.S. Supreme Court, the court concluded that any fair reading of the BIA’s decisions in the case indicated that it did not find the petitioner’s case to be persuasive, and thus that its findings of fact and conclusions were demonstrably reasonable. (Dai v. Garland, 8/20/21)
CA9 Remands for Reconsideration of Mexican Petitioner’s Proposed PSG of “Female Nurses”
Granting the petition for review, the court held that the BIA’s rejection of the Mexican petitioner’s proposed particular social group (PSG) of “female nurses” on the ground that nursing is not an immutable characteristic was unreasonable. (Plancarte Sauceda v. Garland, 8/20/21)
USCIS Reaches Settlement Agreement in “Blank Space Rejection Policy” Case
USCIS reached an agreement in Vangala, et al. v. USCIS, et al., to allow updated receipt dates for immigration benefits and applications or petitions originally rejected under the former “No Blank Space” rejection policy. Affected filers have until 7/20/22 to receive an earlier receipt date.
CA2 Upholds Adverse Credibility Determination as to Asylum Applicant Allegedly on Government Blacklist in China
The court held that substantial evidence supported the BIA’s adverse credibility determination as to the petitioner, finding that his failure to disclose until cross-examination his alleged inclusion on a government blacklist in China undermined his credibility. (Liang v. Garland, 8/19/21)
CA9 Says Vehicle Theft Under California Vehicle Code §10851(a) Is Not an Aggravated Felony
Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)
CA9 Holds That Petitioner Did Not Suffer Past Persecution in India After Considering Non-Exhaustive List of Factors
The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)
AILA’s Asylum & Refugee Committee Requests Meeting Opportunity with the USCIS Asylum Division
AILA’s Asylum & Refugee Committee sent a letter to Associate Director of the USCIS Refugee, Asylum, and International Operations Directorate (RAIO) Jennifer B. Higgins requesting the opportunity meet and discuss policy updates, trends, and issues in the field of asylee and refugee processing.
CA8 Upholds Denial of Deferral of Removal Under the CAT to Somalian Petitioner
Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)
CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)
CA9 Remands for BIA to Consider Petitioner’s Social Group Claim Based on His Perceived Gang Membership
The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)
CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG
The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)
CA4 Upholds BIA’s Asylum Denial to Former Member of MS-13 Gang in El Salvador
The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)
CA8 Finds BIA Did Not Err in Excluding Petitioner’s Mental Health Issues from PSC Analysis
The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)
DOS Announces Priority 2 Designation for Certain Afghan Nationals and Their Eligible Family Members
DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation, granting U.S. Refugee Admissions Program access. Notice outlines eligibility.
DHS Issues Statement on Expedited Removal Flights for Certain Families
DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras.
DHS Publishes Notification of Prior Ratification of Rule Removing 30-Day EAD Processing Requirement for Asylum Applicants
DHS published notification in the Federal Register of Secretary Mayorkas’s 5/4/21 ratification of the final rule entitled “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications.” (86 FR 40918, 7/30/21)
USCIS Announces Opening of New Asylum Office in Tampa, Florida
USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.
Presidential Determination on Unexpected Urgent Refugee and Migration Needs
Presidential determination of 7/23/21 furnishing assistance of up to $100 million for the purpose of meeting unexpected urgent refugee and migration needs for persons at risk as a result of the situation in Afghanistan, including applicants for Special Immigrant Visas. (86 FR 40915, 7/29/21)
CA5 Says Petitioner Failed to Show Nexus Between Her Fear of Mexican Drug Cartel and Her Immediate Family
The court upheld the denial of asylum as to the petitioner, who feared she would be killed or tortured by the Zetas in Mexico, finding that the BIA and IJ correctly concluded that familial ties did not sufficiently motivate the Zetas to target petitioner. (Vazquez-Guerra v. Garland, 7/29/21)
CA7 Holds That Nigerian Petitioner Was Removable for Having Procured Her Entry Visa by Fraud and Was Not Entitled to Asylum
The court found that the adverse credibility findings of the IJs as to petitioner and her ex-husband were supported by substantial evidence, and upheld the IJs’ conclusions that petitioner was removable based on her sham marriage and was not entitled to asylum. (Omowole v. Garland, 7/29/21)
CA6 Upholds Asylum Denial Where Petitioner Failed to Show Guatemalan Government Was Unable or Unwilling to Control Her Abuser
The court held that its recent decision in Juan Antonio v. Barr did not undermine the BIA’s rejection of the petitioner’s claim that the Guatemalan government was unable or unwilling to control her ex-boyfriend’s abuse. (Gonzalez Ortiz v. Garland, 7/28/21)
CA2 Reverses Adverse Credibility Determination as to Petitioner Seeking Relief from Political Persecution in India
Where the petitioner sought relief from political persecution in India, the court found that the IJ’s adverse credibility finding was not supported by substantial evidence, concluding that a trivial inconsistency by itself did not reasonably justify the finding. (Singh v. Garland, 7/28/21)