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
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)
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.
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)
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.
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)
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.
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.
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)