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
USCIS Temporary Final Rule on Interpreters at Asylum Interviews
USCIS temporary final rule providing that, from 9/23/20 through 3/22/21, asylum applicants who cannot proceed with the interview in English must ordinarily use DHS-provided telephonic interpreters, due to COVID-19. (85 FR 59655, 9/23/20)
CRS Issues Legal Sidebar on Asylum and Related Protections for Individuals Who Fear Gang and Domestic Violence
CRS updated its legal sidebar examining asylum claims based on gang and domestic violence after the DC federal court ruled that USCIS policies issued after the AG’s decision in Matter of A-B- were unlawful and enjoined USCIS from applying them with respect to credible fear determinations.
Practice Alert: Temporary Changes to Asylum Interview Interpreter Requirements
AILA provides a Practice Alert explaining a temporary final rule, effective 9/23/20, which provides that asylum applicants are no longer required to provide interpreters at interviews but should proceed with DHS-provided telephonic interpreters. Special thanks to the Asylum and Refugee Committee.
EOIR Resumes Hearings in Non-Detained Cases at the Los Angeles Immigration Courts
EOIR announced that it resumed non-detained individual (merits) hearings and master calendar dockets involving small numbers of respondents at the three Los Angeles immigration courts on September 21, 2020. The option to file by email at these courts will end on November 20, 2020.
CA1 Finds “Wealthy Immigrants Returning to Jamaica” Is Not a Cognizable Particular Social Group
The court held that the petitioner’s withholding of removal claim failed, because it found that “wealthy immigrants returning to the country of Jamaica” did not form a cognizable particular social group. (Lee v. Barr, 9/22/20)
CA1 Upholds Denial of Asylum to Ecuadorian Petitioner Who Feared Harm from Brother Involved in Narcotics Trafficking
The court held that the record supported the BIA’s and IJ’s conclusion that family ties did not motivate the petitioner’s persecution at the hands of his adopted older brother, even though those ties brought the petitioner into proximity with his persecutor. (Loja-Tene v. Barr, 9/21/20)
CA9 Finds Petitioner Was Properly in Asylum-Only Proceedings and IJ Lacked Jurisdiction to Consider Adjustment of Status Request
The court held that the termination of petitioner’s grant of asylum by reopening his asylum-only proceedings was not error, and that the IJ did not have jurisdiction to consider his request for adjustment of status because of the limited scope of such proceedings. (Bare v. Barr, 9/16/20)
NARA Notice of Agency Records Schedules
National Archives and Records Administration (NARA) notice with proposed records schedules in which agencies propose to dispose of certain records. This notice includes a USCIS schedule titled “Humanitarian Benefits.” Comments are due 11/2/20. (85 FR 57884, 9/16/20)
EOIR Resumes Hearings in Non-Detained Cases at the Charlotte, Denver, and Orlando Immigration Courts
EOIR announced that it resumed non-detained individual (merits) hearings and master calendar dockets involving small number of respondents at the Charlotte, Denver, and Orlando immigration courts on September 14, 2020. The option to file by email at these courts will end on November 13, 2020.
TRAC Says It Will Release New Asylum Data, But Urges Caution with EOIR Data
TRAC announced it will again release data through its asylum tool, but notes that records are still missing from the data it receives from EOIR. TRAC says there is evidence that EOIR is mismanaging or misrepresenting the data it uses to evaluate IJs’ performance, support policy changes, and more.
Asylum/AILA South Florida Liaison Meeting Minutes (9/16/20)
Minutes from AILA’s Asylum Committee meeting with the Asylum Office. Minutes include various questions posed the Asylum Committee.
CA1 Upholds Asylum Denial to Honduran Petitioner Who Feared Attacks Motivated by His Father’s Gang Affiliation
The court held that the petitioner did not meet his burden of showing that the government of Honduras was unwilling or unable to protect him, where the evidence in the record indicated that the police had investigated the threats and attacks against him. (Gómez-Medina v. Barr, 9/15/20)
CA5 Upholds Denial of Asylum to Chinese Petitioner Who Claimed He Had an Anti-Corruption Political Belief
The court upheld the BIA’s denial of asylum to the Chinese petitioner, finding that the evidence did not compel a reasonable factfinder to conclude that the petitioner had been persecuted for his political opinion rather than for personal reasons. (Du v. Barr, 9/14/20)
CA9 Finds Record Showed That Salvadoran Government Was Unable to Control Gang’s Deadly Violence
The court held that substantial evidence did not support the BIA’s conclusion that the government of El Salvador was willing and able to control the Mara-18 gang that attacked the petitioner and killed his son, and found that the gang continues to be a threat. (J.R. v. Barr, 9/11/20)
District Court Preliminarily Enjoins Certain Provisions of New DHS Asylum EAD Rules
The district court preliminarily enjoined the defendants from enforcing a subset of the new asylum employment authorization document (EAD) rules as applied to individual members of Casa de Maryland and Asylum Seeker Advocacy Project. (Casa de Maryland, Inc., et al. v. Wolf, et al., 9/11/20)
CA9 Holds BIA Applied Incorrect Standard When Reviewing IJ’s Factual Findings Related to Mexican Petitioner’s CAT Application
The court held that the BIA erred by not reviewing the IJ’s factual findings for clear error, as required by 8 CFR §1003.1(d)(3)(i), when it reversed the IJ’s grant of deferral of removal under the Convention Against Torture (CAT). (Guerra v. Barr, 3/3/20, amended 9/11/20)
Practice Alert: U.S.-Canada Safe Third Country Agreement Declared Unconstitutional by Canadian Federal Court
AILA National’s Asylum and Refugee Committee provides a practice alert regarding the decision of the Canadian Federal Court stating that the STCA impermissibly infringes upon asylum seekers’ rights by returning them to CBP to face U.S. immigration detention and removal proceedings.
CA8 Upholds Denial of CAT Relief to Bangladeshi Petitioner Who Converted to Christianity
Upholding the denial of deferral of removal under the Convention Against Torture (CAT), the court held that the BIA did not err in determining that the petitioner had failed to show he would more likely than not be tortured if removed to Bangladesh. (Ahmed v. Barr, 9/4/20)
Practice Pointer on Asylum Pending EADs
AILA’s Asylum Committee provides a practice pointer on asylum pending EADs following the USCIS final rule issued on 6/26/20. Practitioners should consider filing EAD applications before the 8/25/20 effective date and before the elimination of the 30-day processing time deadline on 8/21/2020.
BIA Invites Amicus Briefs on Unsigned MPP Notices and Advisal Sheets
The BIA invited amicus briefs on if a notice of an MPP hearing is adequate to satisfy due process if the MPP notice and advisal sheets are not signed nor otherwise acknowledged by the respondent on the record.
CA3 Upholds Asylum Denial After Finding Syrian Militia Is a Tier III Terrorist Organization Under INA §212(a)(3)(B)(vi)(III)
The court upheld the denial of asylum to the petitioner, who fled involuntary military service in a government-controlled militia in Syria, finding that the militia was not beyond the scope of the Tier III provision under INA §212(a)(3)(B)(vi)(III). (A.A. v. Att’y Gen., 9/2/20)
CA4 Finds Petitioner Failed to Establish That Salvadoran Government Was Unable or Unwilling to Control MS-13
Finding that the record did not compel the conclusion that the Salvadoran government was unwilling or unable to control the MS-13 gang, the court upheld the IJ and BIA’s conclusion that the petitioner did not qualify as a refugee under INA §101(a)(42)(A). (Portillo-Flores v. Barr, 9/2/20)
EOIR to Resume Hearings in Non-Detained Cases at the Salt Lake City Immigration Court
EOIR announced that will resume non-detained individual hearings and master calendar dockets involving relatively small number of respondents at the Salt Lake City Immigration Court on September 8, 2020. The option to file by email at this court will end on November 8, 2020.
DHS Releases 2019 Report on Refugees and Asylees
DHS released the 2019 flow report on refugees and asylees. Per DHS, in 2019, a total of 29,916 persons were admitted to the U.S. as refugees. An additional 46,508 individuals were granted asylum, out of which 27,643 were granted asylum affirmatively, and 18,865 were granted asylum defensively.
Searching for Hope Among the Ruins of Our Asylum System
Dree Collopy, chair of AILA's upcoming Virtual Asylum Conference highlights some of the changes impacting asylum that have come recently and what will be covered by the conference, noting that while this is a tough fight to keep up, “We can lift each other up, help each other succeed, and save our c