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 Says BIA Erred in Not Considering Individualized Hardship When It Reversed IJ’s Grant of Adjustment Application
The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21)
D.C. Circuit Affirms Dismissal of Claims by Detained Mothers and Children Challenging Credible Fear Regulations
The D.C. Circuit Court affirmed the district court’s determination that the IIRAIRA barred its review of 10 of the 11 alleged policies, because either the policy was unwritten or the challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21)
DOJ Issues Guidance Regarding Adjudication of Motions to Reopen in MPP Cases
DOJ issued guidance to all immigration court and BIA personnel with information regarding the adjudication of motions to reopen in Migrant Protection Protocols (MPP) cases.
CA4 Upholds Asylum Denial to Honduran Petitioner Convicted of Unlawful Wounding in Virginia
The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21)
Presidential Determination on Unexpected Urgent Refugee and Migration Needs
Presidential determination of 6/11/21 furnishing assistance of up to $46 million from the United States Emergency Refugee and Migration Assistance Fund for the purpose of meeting unexpected urgent refugee and migration needs. (86 FR 32631, 6/22/21)
CA9 Finds Changed Country Conditions Exception Applies Where Personal Circumstances Changed in a Way Entirely Outside Petitioner’s Control
The court held that while a self-induced change in personal circumstances does not qualify for the changed country conditions exception, that principle does not apply when changed country circumstances, while personal to petitioner, are entirely outside her control. (Kaur v. Garland, 6/21/21)
D.C. Circuit Affirms Dismissal of Most Claims Brought by Detained Mothers and Children Challenging Credible Fear Regulations
The court affirmed the district court’s conclusion that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) barred its review of 10 of 11 alleged policies, because the policy was unwritten or challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21)
CA11 Finds BIA Failed to Properly Reconsider Discretionary Denial of Asylum Under 8 CFR §1208.16(e)
The court held that when an applicant is discretionarily denied asylum but granted withholding of removal and the IJ fails to reconsider its discretionary denial of asylum, the BIA must remand for the IJ to conduct this required reconsideration. (Thamotar v. Att’y Gen., 6/17/21)
CA3 Upholds BIA’s Denial of Motion to Reopen CAT Claim Based on Changed Country Circumstances in Jamaica
The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21)
DOJ Vacates Matter of A-B- and Matter of A-B-II
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)
DOJ Vacates Matter of L-E-A- II
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)
DOJ Issues Memo on the Impact of Attorney General Decisions in Matter of L-E-A- and Matter of A-B-
DOJ issued a memo to the Civil Division’s Office of Immigration Litigation on the impact of Attorney General Merrick Garland’s vacation of Matter of L-E-A- (L-E-A- II), Matter of A-B- (A-B- I), and Matter of A-B- II).
AG Garland Vacates Asylum Precedents That Harmed Victims of Violence
AG Garland vacated decisions in Matter of A-B- and Matter of L-E-A-, both of which had arbitrarily overturned years of established case law. By vacating these two decisions, the AG has restored access to asylum for many people fleeing persecution abroad.
Resources Related to Lawsuit Challenging New DHS Asylum EAD Rules
Find resources related to Casa de Maryland, Inc. v. Wolf, a lawsuit filed by immigration advocacy organizations challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers.
Negligence and Mayhem – We Need to Phase Out the Use of Migrant Detention
In this blog post, Sarah Owings shares the realities of what immigration detainees face and why she wants “you to push for fair and humane ways to process people's' immigration paperwork, outside of detention“ so the detention machine can be shut down entirely.
BIA Issues Ruling on Changed Circumstances Exception to the One-Year Filing Bar for Asylum Applications
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021)
DHS Provides Initial Progress Report on the Interagency Task Force on the Reunification of Families
The Interagency Task Force on the Reunification of Families, in response to the prior administration’s use of immigration laws to intentionally separate children from their families, submitted its initial 120-day progress report on its accomplishments and ongoing challenges.
CA8 Upholds Denial of Asylum to Honduran Petitioner After Finding Her PSG of Family Membership Was Not a Central Reason for Threats
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21)
The Mixed Messages and Missed Opportunities in Biden’s FY 22 Budget
In this blog post, AILA Government Relations Directors Gregory Chen and Sharvari Dalal-Dheini highlight the mixed messages and missed opportunities on immigration issues in the Fiscal Year 2022 budget released by President Biden.
CA11 Finds Salvadoran Petitioner Whose Family Was Targeted by Gang Failed to Satisfy Nexus Requirement for Asylum
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21)
DHS Terminates the Migrant Protection Protocols Program
DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP.
Supreme Court Rejects Ninth Circuit’s “Deemed-True-or-Credible Rule” as Irreconcilable with the INA
The U.S. Supreme Court held that the Ninth Circuit’s rule stating that, in the absence of an explicit adverse credibility determination by the IJ or BIA, a reviewing court must treat a noncitizen’s testimony as credible and true could not be reconciled with the INA. (Garland v. Dai, 6/1/21)
Law Scholars Urge DOJ and DHS to Adopt Protective Regulations Related to Nonstate Actor Persecution
One hundred law scholars sent a letter to DOJ and DHS on the state protection element of the refugee definition, urging regulations that provide that, once an applicant establishes past persecution, the burden shifts to DHS to show that the state is willing and able to prevent future persecution.
Practice Alert: DHS Secretary Ratifies Rule Removing 30-Day Initial EAD Processing Requirement for Asylum Seekers
AILA’s Asylum and Refugee Committee explains the recent ratification of a rule that removed a 30-day processing requirement for initial EAD applications based on a pending asylum application. The alert highlights the benefits of CASA and ASAP membership as they are exempted from this ratification.
EOIR Announces Dedicated Docket Process for More Expeditious Immigration Hearings
EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.