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
Notice of Proposed Settlement Regarding Asylum Applicants with Employment Authorization Who Were Denied Safety Net Assistance in New York
The NY County Supreme Court approved a proposed settlement in Colaj v. Roberts benefiting a class of asylum applicants with work authorization who were denied Safety Net Assistance between 8/7/14 and 11/21/17. Under the agreement, the applicants will get a certain amount of back benefits.
District Court Rejects Challenge to DHS’s Expedited Removal Pilot Programs
The district court found that DHS’s new detention-placement policy of the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs did not violate statutory, regulatory, or constitutional requirements. (Las Americas Immigrant Advocacy Center v. Wolf, 11/30/20)
CA4 Finds BIA Abused Its Discretion in Denying Asylum to Former Colombian Police Officer
The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20)
USCIS Issues Alert on Asylum EAD Applications Following Preliminary Injunction
USCIS issued an alert regarding the steps it is taking to comply with the 9/11/20 injunction in Casa de Maryland, et al. v. Chad Wolf, et al. concerning the application of certain regulatory changes to Forms I-589 and I-765 filed by asylum applicants who are CASA or ASAP members.
CA8 Upholds BIA’s Conclusion That Somali Government Would Not Acquiesce in Any Torture of Petitioner by Al-Shabaab
Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20)
How You Can Fight the Wrongful Deportation of Cameroonian Asylum Seekers
In this blog post, Director of the Immigration Justice Campaign Karen Lucas highlights the harm faced by Cameroonian asylum seekers who are being wrongfully deported by ICE and urges the public to take action to draw attention to this injustice.
Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration
AILA members Angelo A. Paparelli and Stephen Yale-Loehr offer some insights and ideas for the incoming Biden-Harris administration on actions that would make the immigration system more transparent, efficient, and welcoming.
Practice Pointer: How to Use Expert Witnesses in Immigration Court After Matter of J-G-T-
Practice pointer with tip on proffering an expert following Matter of J-G-T-, 28 I & N Dec. 97 (BIA 2020), which concerns an IJ's duty to make findings regarding expert testimony. Special thanks to the AILA Asylum and Refugee Committee.
Federal Judge Issues Nationwide Injunction Against Rule Restricting Asylum Eligibility
A district court issued a nationwide injunction against a rule issued on 10/21/20 that created new categories that would bar individuals from being eligible for asylum, which were scheduled to go into effect on 11/20/20. (Pangea Legal Services et al., v. DHS, et al., 11/19/20)
AILA Submits Amicus Brief on Nonstate Actor Determination in Asylum Claims
AILA submitted an amicus brief in Sylvestre v. Barr requesting the Ninth Circuit to remand the case back to BIA and clarify the standard of review applicable to appeals when making nonstate actor determinations for asylum and withholding for removals.
USCIS Issues Memo on Expanding Interviews to Refugee/Asylee Relative Petitions
USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented.
CA9 Finds BIA Erred in Giving Reduced Weight to Testimony of Specialist in Gang Activity
The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20)
CA1 Upholds Denial of Asylum to Haitian Petitioner Who Provided Unsupported Theory of Attackers’ Motivation
Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20)
The Biden Administration Needs to Add Digital Modernization into Its Immigration Plans
AILA Board of Governors Member Greg Siskind highlights how the Biden-Harris administration should implement digital modernization of immigration filings, as well as a plea to make sure that attorneys and stakeholders be part of the testing of any new process.
Resilience Among LGBTQ+ Immigrants
AILA Law Journal author Sarah Houston is interviewed by AILA Editorial Director Danielle Polen for the blog, sharing how she became an advocate for LGBTQ+ asylum seekers and how transgender women and men in particular face a hidden epidemic of physical and psychological abuse.
BIA Rules It Is Inappropriate for the Board to Use Discretion to Reopen and Vacate an IJ’s Frivolousness Finding
The BIA ruled that absent ineffective assistance of counsel, or a showing undermining the validity and finality of the finding, it is inappropriate for the Board to exercise its discretion to reopen a case and vacate an IJ’s frivolousness finding. Matter of H-Y-Z-, 28 I&N Dec. 156 (BIA 2020)
AILA and Partners Submit Amicus Brief on Bond Eligibility in Withholding-Only Proceedings
AILA and partners submitted an amicus brief in the Supreme Court in Pham v. Guzman Chavez asking the court to affirm the Fourth Circuit's judgment that detained noncitizens in withholding-only proceedings have the right to individualized bond-hearings.
EOIR Releases Memo Rescinding and Canceling Certain Outdated Operating Policies and Procedures Memoranda
EOIR issued a policy memo (PM 21-02) rescinding Operating Policies and Procedures Memoranda (OPPRM) 13-03, Guidelines for Implementation of the ABT Settlement Agreement, and 16-01, Filing Applications for Asylum. The rescissions are effective November 6, 2020.
EOIR Releases Memo on Immigration Court Hearings Conducted by Telephone and Video Teleconferencing
EOIR Released a memo (PM 21-03) canceling and replacing OPPM 04-06 and memorializing EOIR policies regarding the use of the telephone and video teleconferencing (VTC or VC) to conduct hearings in proceedings before an immigration judge.
Presidential Determination on Refugee Admissions for FY2021
President Trump issued a determination on 10/27/20, setting the refugee admissions ceiling for FY2021 at 15,000, which incorporates more than 6,000 unused places from the FY2020 ceiling. (85 FR 71219, 11/6/20)
EOIR Provides Guidelines for the Implementation of the Settlement Agreement in Mendez Rojas v. Wolf
EOIR released guidelines for the implementation of the settlement agreement in Mendez Rojas v. Wolf, which requires class members to file notice of class membership on or before 3/31/22. Individuals who establish class membership shall be deemed to have timely filed an asylum application.
Attorney General Rules on Duress Exception to the Persecutor Bar for Asylum and Withholding of Removal
The AG ruled that the bar to eligibility for asylum and withholding based on persecution does not include an exception for coercion or duress, and that DHS does not have an evidentiary burden to show ineligibility based on the persecutor bar. Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)
CA5 Upholds Denial of Withholding of Removal to Honduran Petitioner Who Refused to Join Gang
The court upheld the BIA’s conclusion that the petitioner’s proposed social groups—including Honduran women who have been targeted for and resisted gang recruitment after the murder of a gang-associated partner—were not cognizable. (Suate-Orellana v. Barr, 11/3/20)
DOJ’s Immigration Court Practice Manual (Updated on 11/3/20)
On November 3, 2020, the OCIJ updated its Immigration Court Practice Manual, a comprehensive guide on uniform procedures, recommendations, and requirements for practice before immigration courts.
USCIS Releases Instructions on Filing Form I-589s with the Asylum Vetting Center
USCIS announced via the Form I-589 webpage that beginning 11/2/20, asylum offices will no longer accept the filing of Form I-589s that previously were filed directly with a local asylum office. These forms must be filed with the Asylum Vetting Center in Atlanta, Georgia.