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
EOIR Releases Memo Rescinding and Canceling Certain Outdated Operating Policies and Procedures Memoranda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.
D.C. District Court Vacates USCIS’s Credible Fear Lesson Plan
The court vacated USCIS’s “Lesson Plan on Credible Fear of Persecution and Torture Determinations,” and ordered defendants to provide plaintiffs with new credible fear screenings that do not rely on unlawful policies in the vacated Lesson Plan. (Kiakombua, et al. v. Wolf, et al., 10/31/20)
CA4 Finds Asylum Applicant’s Proposed Social Group Was Impermissibly Circular Under Matter of A-B-
The court found that the petitioner’s proposed social group of “married El Salvadoran women in a controlling and abusive domestic relationship” violated the anti-circularity requirement reaffirmed in the Attorney General’s ruling in Matter of A-B-. (Amaya-De Sicaran v. Barr, 10/30/20)
House Judiciary Committee Releases Report on the Trump Administration’s Family Separation Policy
The House Judiciary Committee released a report on the Trump administration's family separation policy. Concluding that the policy was formulated as early as February 2017, the report reveals both the chaotic planning and implementation of the policy, as well as failed efforts to reunite families.
TRAC Says Asylum Denial Rates Continue to Climb
TRAC released a report noting that despite the partial court shutdown due to the pandemic, in FY2020, immigration judges made the second highest number of asylum decisions in the past two decades. The rate of denial also climbed to a record high of 71.6 percent, compared to 54.6 percent in FY2016.
DHS OIG Finds CBP Limited the Number of Asylum Seekers Processed Each Day at the Southern Border
DHS OIG found that DHS urged asylum seekers to come to ports of entry, but reassigned staff away from asylum processing. CBP also stopped processing most undocumented individuals at seven ports, returned to Mexico asylum seekers who had already entered, and did not use all available detention space.
AILA Submits Amicus Brief on Nonstate Actor Determinations in Asylum Claims
AILA submitted an amicus brief in Portillo-Flores v. Barr requesting that the Fourth Circuit to grant en banc review and clarify the standard of review courts apply when making nonstate actor determinations in asylum claims.
Remote Pro Bono Work in the Midst of a Pandemic
Jacqueline Shi, AILA member and member of the AILA National Pro Bono Committee, shares how attorneys continue to provide pro bono services to vulnerable immigrant communities during the pandemic by using technology and innovation.
AILA and the Council Submit Comments Opposing EOIR’s Proposed Rule, Procedures for Asylum and Withholding of Removal
AILA and the Council submitted comments opposing EOIR’s proposed rule, Procedures for Asylum and Withholding of Removal. If implemented, this rule would drastically limit the ability of individuals to obtain asylum and withholding of removal in the United States.
USCIS and EOIR Final Rule on Bars to Asylum Eligibility
USCIS and EOIR final rule that adds seven additional mandatory bars to eligibility for asylum, among other changes. The final rule is effective 11/20/20. (85 FR 67202, 10/21/20)
TRAC Says MPP Cases Highest Since Start of Pandemic
TRAC issued a report stating that the number of new deportation cases under MPP is on the rise after a year of month-over-month declines. In 9/20, immigration courts recorded 1,133 new MPP cases, highest since the start of the pandemic. A total of 24,540 MPP cases are currently pending in courts.
EOIR to Resume Hearings in Non-Detained Cases at the Imperial and Miami Immigration Courts
EOIR announced that it will resume non-detained individual (merits) hearings and master calendar dockets involving small numbers of respondents at the Imperial and Miami immigration courts on 10/19/20. The option to file by email at these courts will end on 12/18/20.
CA4 Grants Asylum to Salvadoran Petitioner Targeted by Gang Because Her Parents Failed to Comply with Extortive Threats
The court held that the IJ and the BIA had failed to adequately address unrebutted evidence in the record that compelled the conclusion that the petitioner’s membership in her family was at least one central reason for her persecution. (Hernandez-Cartagena v. Barr, 10/14/20)
CA9 Upholds Adverse Credibility Determination as to Petitioner from the DRC Based on Inconsistencies in the Record
Where there were inconsistencies, an omission, and implausibilities in the record, the court held that substantial evidence supported the denial of asylum to the petitioner, a native of the Democratic Republic of Congo (DRC), on adverse credibility grounds. (Mukulumbutu v. Barr, 10/13/20)
EOIR to Resume Hearings in Non-Detained Cases at the Atlanta Immigration Courts
EOIR announced that it will resume non-detained individual (merits) hearings and master calendar dockets involving small numbers of respondents at the Atlanta W. Peachtree Street and Ted Turner Drive immigration courts on 10/13/20. The option to file by email at these courts will end on 12/12/20.
EOIR to Resume Hearings in Non-Detained Cases at the Seattle Immigration Court
EOIR announced that it will resume non-detained individual (merits) hearings and master calendar dockets involving small numbers of respondents at the Seattle immigration court on October 13, 2020. The option to file by email at this court will end on December 12, 2020.
AILA and Partners Request EOIR to Extend Comment Period for Proposed Rule on Asylum and Withholding of Removal Procedures
Nearly 90 organizations, including AILA, sent a letter to EOIR and OMB urging the agencies to extend the public comment period on EOIR's proposed rule on asylum and withholding of removal procedures from 30 days to a minimum of 60 days.
CA7 Says BIA Erred in Finding IJ Need Not Warn Petitioner of Possible Eligibility for Asylum and Related Relief
Where the petitioner had told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, the court held that the IJ should have advised him that he might be eligible for asylum or withholding of removal. (Jimenez-Aguilar v. Barr, 10/6/20)