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
CA2 Says Petitioner’s Belief That Gangs Are Bad for His Town and Country Is Not a Political Opinion for Asylum Purposes
The court held that the petitioner’s negative view of gangs did not amount to a political opinion for asylum purposes, and that substantial evidence supported the BIA’s decision that he did not establish a likelihood of future torture in El Salvador. (Zelaya-Moreno v. Wilkinson, 2/26/21)
DHS Releases FAQs on MPP Processing
DHS released a webpage with FAQs on the processing of individuals in Mexico with active MPP cases. Among other things, the FAQs address what has changed with regards to MPP, the general steps in the new process, who is able to use the process, protections against COVID-19, and more.
CA9 Finds BIA Erred in Asylum Nexus Analysis as to Petitioner Who Fled Mexico Due to Drug Cartel’s Threats
Granting in part the petition for review, the court concluded that substantial evidence did not support the BIA’s determination that petitioner was not persecuted on account of her membership in her proposed social groups—her family and property owners. (Naranjo Garcia v. Wilkinson, 2/18/21)
District Court Grants Preliminary Injunction in Third Country Transit Ban Litigation
A district court granted a preliminary injunction preventing the government from implementing the Third Country Transit Ban final rule and ordering the return to the pre-Final Rule practices for processing asylum applications. (East Bay Sanctuary Covenant vs. Barr, 2/16/21)
District Court Enjoins DHS from Applying MPP to Seven Asylum Seekers Who Were Returned to Mexico
The U.S. District Court for the District of Massachusetts issued a preliminary injunction requiring DHS to rescind the orders returning seven asylum-seeking plaintiffs to Mexico pursuant to the Migrant Protection Protocols (MPP). (Bollat Vasquez, et al. v. Mayorkas, et al., 2/13/21)
Resources Related to Rosario v. USCIS
Resources related to Rosario v. USCIS, the nationwide class action that resulted in an order requiring USCIS to adjudicate initial EAD applications by asylum applicants within the 30 days including the impact of Casa de Maryland, Inc. v. Wolf.
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)
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.
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)
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)
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.
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.
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.
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)