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
DHS Releases Privacy Impact Assessment for Processing Individuals Subject to MPP
DHS Released a PIA to assess the privacy risks associated with the biometric and biographic information collected to process individuals enrolled in MPP. CBP will use technology solutions, including facial recognition technology, to verify MPP enrollment and case status and to streamline processing.
Helping Asylees Find Welcome
In this blog post, AILA Law Journal authors Ben Levey and Rachel Zoghlin of HIAS share how they came to write about the reasons why asylees aren't accessing benefits they are eligible for, and policy recommendations to effect change and help clients.
TRAC Finds 40 Languages Spoken Among Asylum Seekers with Pending MPP Cases
TRAC found that at least 40 different languages are spoken by the nearly 30,000 migrants with pending MPP cases. Ninety-seven percent spoke Spanish, and 1.7 percent spoke Portuguese. Slightly more than one percent, or 337 in total, were recorded as speaking indigenous and other rare languages.
Emergency Presidential Determination on Refugee Admissions for FY2021
President Biden issued a determination revising the allocations for refugee admissions for FY2021 and maintaining the refugee admissions ceiling at 15,000. The memo notes that a subsequent determination may be issued if the ceiling is reached before the end of the fiscal year. (86 FR 21159, 4/22/21)
TRAC Finds More Than 85 Percent of MPP Cases Still Remain in MPP Courts
TRAC found that even though 4,000 MPP cases were transferred away from the border in February and March, more than 85 percent, or 22,521, of the 26,432 pending cases in MPP courts at the end of January have not been recorded as transferred out of an MPP court by the end of March.
Coercive Population Control and Immigration Law
AILA member Sylvia Miller shares insights into why she wrote for the Spring 2021 edition of the AILA Law Journal, “Ultimately my hope is that this article helps continue and broaden conversations, both within the legal community and between attorneys and our clients“ about coercive population
The Arab American Struggle for an Inclusive Immigration System
AILA member and Executive Director of NIPNLG Sirine Shebaya writes for Think Immigration about how we must ensure administrations “understand the complexity and diversity of our Arab American community and uphold our values of compassion and respect for everyone's rights in both word and policy.R
AILA, ASISTA, and Tahirih Justice Center Submit Comments on Form I-290B, Notice of Appeal or Motion
AILA, ASISTA, and the Tahirih Justice Center submitted comments on Form I-290B, expressing concerns regarding limits on appellate review after a motion and appeals that must address all grounds of ineligibility. The groups also requested clarification regarding derivative applicants and denials.
AILA and Partners Submit Amicus Brief Arguing That the BIA’s Narrow Reading of the Nexus Requirement Restricts Meritorious Claims Brought by Transgend
AILA and partners submitted an amicus brief urging the Ninth Circuit to vacate the BIA’s decision to deny a transgender Mexican woman asylum and withholding, arguing that the BIA’s too-narrow nexus requirement, left-standing, will drastically restrict meritorious claims brought by transgender women.
AILA and Partners Urge the Attorney General and DHS Secretary to Create a Welcoming, Effective, and Timely Asylum System
AILA and partners sent a letter to DHS Secretary Mayorkas and AG Garland with recommendations on how to receive and screen migrants seeking safety in the United States in a humane and orderly fashion, including expanding legal counsel programs and using initial asylum interviews at the border.
CA8 Says “Serious Reasons for Believing” Standard Under INA §208(b)(2)(A)(iii) Requires a Finding of Probable Cause
Where BIA had denied asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Garland, 2/3/21, amended 4/15/21)
CA9 Concludes IJ’s Adverse Reasonable Fear of Torture Determination Was Not Supported by Substantial Evidence
Granting the petition for review and remanding, the court held that the IJ’s decision to affirm the asylum officer’s adverse reasonable fear of torture determination as to the Honduran petitioner was not supported by substantial evidence. (Alvarado-Herrera v. Garland, 4/13/21)
CRS Releases Report on the Law of Asylum Procedure at the Border
CRS released a report on the law of asylum procedure at the border, including on the expedited removal and credible fear process; DHS implementation of the statutory framework; Trump administration policies pre- and post-pandemic; regulatory outlook under the Biden administration; and more.
AILA Submits Amicus Brief on Materiality of Evidence of Changed Country Conditions
AILA submitted an amicus brief in the first circuit arguing that the court should adopt a “logical connection” test as the proper analysis for materiality of evidence of changed country conditions in the context of a motion to reopen. The brief also discusses the prima facie eligibility requirement.
Practice Alert: USCIS Policy Manual Updates Related to Asylees and Refugees
AILA’s Asylum and Refugee Committee provides an alert on changes related to termination of USCIS-granted asylum status for principals and/or derivatives, and on changes to when USCIS will require in-person interviews of asylee or refugee adjustment applicants for applications filed after 12/15/20.
CA8 Upholds Denial of Asylum to Somali Petitioner Who Was a Member of a Minority Islamic Sect
The court held that the petitioner was removable because his Minnesota conviction for possession of khat related to a federal controlled substance pursuant to INA §237(a)(2)(B)(i), and found that the petitioner had failed to prove that he was entitled to asylum. (Ahmed v. Garland, 4/8/21)
CA9 Affirms District Court’s Grant of a Preliminary Injunction Against Third Country Transit Ban
The court upheld the district court’s grant of a preliminary injunction against the implementation of a DHS/DOJ joint interim final rule that categorically denies asylum to individuals arriving at the U.S./Mexico border. (East Bay Sanctuary Covenant v. Garland, 7/6/20, amended 4/8/21)
CA1 Upholds Denial of Withholding of Removal to Petitioner Who Claimed He Was Persecuted on Account of Religious Affiliation
The court upheld the BIA’s determination that the central reason for the Salvadoran petitioner’s claimed harm was his unwillingness to join the MS-13 gang—not his Christian faith or his faith-related activities. (Sánchez-Vásquez v. Garland, 4/7/21)
CA11 Says BIA Failed to Provide Reasoned Consideration of Petitioner’s Evidence of His Fear of Future Persecution in Cuba
The court held that the IJ and the BIA failed to provide reasoned consideration of the petitioner’s evidence of his well-founded fear of future persecution based on a pattern or practice of persecution toward dissident journalists in Cuba. (Martinez v. Att’y Gen., 4/7/21)
CA9 Reverses BIA’s Denial of Asylum to Petitioner Who Was Targeted on Account of Her Feminist Political Opinion
Granting the petition for review of the BIA’s decision reversing an IJ’s grant of asylum, the court held that evidence compelled the conclusion that petitioner had established a nexus between her mistreatment in Mexico and her feminist political opinion. (Rodriguez Tornes v. Garland, 4/5/21)
CA10 Finds That Mother and Son Targeted by MS-13 Gang Were Not Persecuted on Account of Membership in Son’s Immediate Family
Denying the petition for review, the court held that the BIA properly found that petitioners, a mother and her son, were not persecuted “on account of” their alleged membership in a particular social group (PSG) consisting of the son’s immediate family. (Orellana-Recinos v. Garland, 4/5/21)
AILA and Partners Submit Amicus Brief Arguing BIA Erred in Rejecting Proposed Social Group of “Salvadoran Women”
AILA and partners submitted an amicus brief in the Fourth Circuit arguing that the BIA erred when it categorically rejected the social group of Salvadoran women, and that the court should correct the Board’s error and vacate its decision.
Justice Campaign Practice Advisory: Employment Authorization for People Formerly in MPP
The Immigration Justice Campaign provides a guide on assisting asylum seekers, who were subjected to the Migrant Protection Protocols (MPP) and who are now in the United States, with seeking employment authorization.
Climbing the Virtual Hill
AILA Policy Counsel Jen Whitlock describes why and how AILA members can use opportunities like the upcoming virtual National Day of Action to urge Congress toward curbing and eventually ending inhumane and wasteful immigration detention in favor of proven community-based systems.
USCIS Releases RAIO Training Course on Affirmative Asylum Process and Procedures
USCIS’s Refugee, Asylum, and International Operations Directorate released the Officer Training Course for the affirmative asylum process and procedures.