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 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)
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)