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
Practice Alert: BIA Decision in Matter of H-L-S-A Narrows Protection for Government Witnesses
AILA provides a practice alert on formulating particular social groups for government witnesses after Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021), which limits protection to individuals who publicly testify against criminal groups. Special thanks to the AILA Asylum and Refugee Committee.
CA4 Overturns BIA’s Denial of Asylum Where Petitioner Showed She Was Persecuted on Account of Her Nuclear Family
The court rejected the BIA’s “excessively narrow” view of the nexus requirement, concluding that the record indisputably showed that the petitioner had satisfied her burden to establish that her familial ties were one central reason for her persecution. (Diaz de Gomez v. Wilkinson, 2/8/21)
U.S. Suspends Asylum Cooperative Agreements with El Salvador, Guatemala, and Honduras
DOS announced that the United States has suspended and initiated the process to terminate the Asylum Cooperative Agreements with El Salvador, Guatemala, and Honduras. The termination is effective after the notice period stipulated in each of the agreements, but the suspension is immediate.
Practice Alert: State of Play Following Presidential Executive Order on Comprehensive Regional Framework and Asylum
This practice alert provides an overview of the 2/2/21 EO on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.”
White House Issues Executive Order on the Southern Border and the Asylum System
On 2/2/21, the White House issued an executive order to implement a comprehensive three-part plan for safe, lawful, and orderly migration across the southern border, as well as to review the MPP program. The order also directs a series of actions to restore the asylum system. (86 FR 8267, 2/5/21)
Biden Administration Continues Taking Necessary Steps to Bring Our Immigration and Asylum Policies Back in Line with Our Values, However More Needs to
AILA welcomed actions taken by the Biden administration that will continue to ameliorate the damage done over the past four years and move our immigration and asylum policies toward fairness and justice, however leaders cautioned that much more needs to be done.
CA9 Says BIA Erred in Finding Petitioner’s Credible Testimony About Attempted Rape Did Not Show Persecution
The court held that petitioner’s credible testimony about her attempted gang rape in India was sufficient to establish past persecution, and that the BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the attempted sexual assault. (Kaur v. Wilkinson, 1/29/21)
CRS Releases Legal Sidebar on Whether Mandatory Detention of Unlawful Entrants Seeking Asylum Is Constitutional
CRS updated its legal sidebar addressing the constitutionality of mandatory detention for certain asylum seekers after the Supreme Court’s decision to vacate the Ninth Circuit’s decision in Padilla v. ICE and to remand for further consideration in light of DHS v. Thuraissigiam.
CA4 Holds That BIA Erred in Finding Petitioner’s “Former Salvadoran MS-13 Members” PSG Lacked Particularity
Granting in part the petition for review, the court found to be unreasonable the BIA’s determination that the petitioner’s proposed particular social group (PSG) of “former Salvadoran MS-13 members” lacked particularity, and thus remanded his withholding claim. (Amaya v. Rosen, 1/25/21)
USCIS and EOIR Delay Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal
USCIS and EOIR document delaying the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20), which was scheduled to become effective on 1/22/21. The effective date is delayed until 3/22/21. (86 FR 6847, 1/25/21)
GAO Releases Report Recommending Better Case Tracking for DHS and DOJ Expedited Credible Fear Screening Pilot Programs
GAO conducted a review of DHS’s and DOJ’s management of two pilot programs to expedite fear screenings for certain apprehended noncitizens and found that DHS and EOIR could not account for the status of immigration hearings for 630 of about 1,220 individuals who received positive determinations.
DHS OIG Says DHS Has Not Effectively Implemented the Prompt Asylum Pilot Programs
DHS OIG found that DHS components have not effectively implemented the PACR and HARP programs. DHS OIG’s review disclosed, among other things, facility limitations; failure to meet CBP detention standards; lack of metrics to measure the program’s effectiveness; inadequate staff resources; and more.
DOS Suspends Refugee Program for U.S.-Affiliated Iraqis for 90 Days
DOS announced that, effective January 22, 2021, the U.S. is suspending the Direct Access Program for U.S.-Affiliated Iraqis for 90 days noting that it needs to “review and address vulnerabilities” to the program that were uncovered during a joint federal investigation.
DHS Suspends New Enrollments in the MPP Program
DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) Program and will cease adding individuals into the program effective 1/21/21. DHS advised current MPP participants to remain where they are, pending further information.
TRAC Releases Report on the State of the Immigration Courts
TRAC released a report on the immigration court backlog, which rose to 1.3 million during the Trump administration. The report includes information on length of wait times, backlogs and wait times across the country, grounds alleged by government, backlogs and wait times by nationality, and more.
Senate Democrats Release Report on Asylum Cooperative Agreements
The Democratic staff of the Senate Committee on Foreign Relations released a report on the Trump administration’s Asylum Cooperative Agreements (ACA), finding that since the implementation of the U.S.-Guatemala ACA, none of the 945 asylum seekers transferred to Guatemala have been granted asylum.
Acting Attorney General Issues New Decision in Matter of A-B-
The Acting Attorney General provided additional guidance on asylum cases involving applicants who claim persecution by non-government actors and membership in a PSG and remanded to the Board to issue a new opinion consistent with this opinion. Matter of A-B- 28 I&N Dec. 199 (A.G. 2021)
CA7 Finds BIA Did Not Err in Denying Asylum to Mexican Petitioner Whose Family Was Targeted by Sinaloa Cartel
The court held that substantial evidence supported the BIA’s determination that the petitioner had failed to establish the requisite nexus between his fear of persecution from the Sinaloa Cartel upon return to Mexico and his family membership. (Meraz-Saucedo v. Rosen, 1/15/21)
CA8 Affirms BIA’s Denial of Deferral of Removal to Somali Petitioner Who Feared Torture by Al-Shabaab for Minority-Clan Membership
The court affirmed the BIA’s decision denying petitioner’s request for deferral of removal to Somalia, finding that substantial evidence supported the IJ’s and BIA’s conclusions that he was unlikely to be tortured by Al-Shabaab due to his minority-clan membership. (Hassan v. Rosen, 1/15/21)
Taking Pro Bono Virtual
AILA Pro Bono Committee Chair Adonia Simpson offers reasons engaging virtually on pro bono activities can be efficient and effective and highlights some easy to plug into opportunities for AILA members.
District Court Halts Final Rule on Procedures for Individuals Who Apply for Asylum and Withholding
A district court granted a temporary restraining order and preliminary injunction halting the implementation of a final rule regarding procedures for individuals who apply for asylum and withholding of removal, which was set to go into effect 1/15/21. (NIJC v. EOIR, 1/14/21)
DOJ OIG Issues Report on DOJ's Planning and Implementation of the Zero Tolerance Policy
DOJ OIG found that the Office of the Attorney General failed to prepare for, or manage, the implementation of its zero tolerance policy, stating that OAG was a driving force behind DHS's decision to begin referring family unit adults for prosecution, which led to the separation of 3,000 families.
Supreme Court Vacates Decision of Ninth Circuit in ICE v. Padilla
The U.S. Supreme Court granted the petition for a writ of certiorari, vacated the judgment of the Ninth Circuit, and remanded for further consideration in light of DHS v. Thuraissigiam. (ICE, et al. v. Padilla, et al., 1/11/21)
CA1 Remands Asylum and Withholding Claims of Iraqi National Who Worked for U.S. Army During War
The court vacated and remanded the BIA’s denial of the asylum and withholding of removal claims of the petitioner, who feared that he would be subjected to harm on account of his work as a paid contractor for the U.S. Army during the war in Iraq. (Al Amiri v. Rosen, 1/11/21)
Minor Correction to DHS and DOJ Final Rule on Procedures for Asylum, Withholding of Removal, and CAT Protection
DHS and DOJ issued a minor correction to the final rule published at 85 FR 80274 on 12/11/20, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (86 FR 1737, 1/11/21)