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 Provides Migrant Protection Protocols Metrics and Measures
DHS provided metrics and measures for the Migrant Protection Protocols (MPP) as of July 2020, including data on DHS’s intended goals for MPP and measurements of how those goals are being met. Per DHS, as of July 17, 2020, 63,623 individuals had enrolled in MPP, with 523 granted relief.
CA5 Upholds Denial of Asylum to Albanian Citizen Who Received Death Threats from Members of Socialist Party
The court upheld the denial of asylum to the Albanian petitioner, who had been threatened and attacked by members of his country’s Socialist Party, finding no error in the BIA’s conclusion that the petitioner’s injuries did not amount to past persecution. (Gjetani v. Barr, 7/31/20)
CA8 Finds Petitioner Failed to Show He Would Likely Be Tortured in South Sudan Based on His Membership in an Ethnic Minority
The court held that the BIA had correctly found that petitioner, who was a member of an ethnic minority, must show more than a pattern of general ethnic violence in South Sudan to meet the likelihood of torture requirement under the Convention Against Torture (CAT). (Lasu v. Barr, 7/31/20)
Ethical Considerations Related to Affirmatively Filing an Asylum Application for the Purpose of Applying for Cancellation of Removal and Adjustment
Learn more about the significant ethical questions posed by submitting an affirmative asylum application with the goal of submitting an application for cancellation of removal, including candor to the tribunal, fees, what constitutes a frivolous application, and much more.
CA3 Holds IJ Failed to Reconsider Discretionary Denial of Asylum After Sri Lankan Petitioner Was Granted Withholding
Granting the petition for review, the court held that the IJ abused his discretion by failing to reconsider pursuant to 8 CFR §1208.16(e) his discretionary denial of asylum to the Sri Lankan petitioner, who was subsequently granted withholding of removal. (Sathanthrasa v. Att’y Gen., 7/30/20)
CA2 Finds Chinese Asylum Seeker Failed to Sufficiently Explain Inconsistencies in His Testimony
The court upheld the BIA’s asylum denial, finding that petitioner, who feared religious persecution in China, had failed to sufficiently explain inconsistencies in his testimony, and that the IJ’s adverse credibility determination was supported by substantial evidence. (Gao v. Barr, 7/28/20)
CA5 Finds Petitioner Failed to Demonstrate Materially Changed Country Conditions in India Based on Persecution of His Caste
The court held that the petitioner, who claimed that violence against his Dalit caste in India had worsened since his removal order was issued, had failed to establish the materially changed country conditions necessary to succeed on a successive motion to reopen. (Deep v. Barr, 7/27/20)
CA3 Says BIA Misapplied Court’s Precedent When It Determined That Honduran Asylum Seeker Did Not Establish Persecution
The court held that the BIA and IJ had misstated the court’s precedent in three ways in determining that the harm the Honduran petitioner had suffered did not rise to the level of past persecution, including by requiring him to show severe physical harm. (Blanco v. Att’y Gen., 7/24/20)
CA1 Upholds Denial of Deferral of Removal to Venezuelan Petitioner Who Feared Retaliation by Drug Traffickers
The court held that, based on the administrative record, the Venezuelan petitioner, who had been convicted of heroin trafficking and found removable under INA §101(a)(43)(B), was ineligible for deferral of removal under the Convention Against Torture. (Sanabria Morales v. Barr, 7/24/20)
USCIS Accountability: An Examination of "Blank Space" Rejections
This powerpoint analyzes the results of AILA’s review of a number of Form I-589 and Form I-918 rejections for alleged incompleteness reported by members between November 25, 2019, and May 1, 2020. It provides an overview of the top reasons these forms were rejected by the various service centers.
CA8 Finds BIA Did Not Abuse Its Discretion in Denying Motion to Reopen Based on Changed Country Conditions in Somalia
The court held that the BIA did not err in denying the petitioner’s motion to reopen his removal proceedings based on changed conditions in Somalia, finding that al-Shabaab’s activities between 2008 and 2018 did not represent a material increase in violence. (Shire v. Barr, 7/23/20)
Audio Recording from the July 22, 2020, NAIJ Stakeholder Town Hall Meeting
The National Association of Immigration Judges (NAIJ) hosted a virtual town hall meeting with stakeholders on July 22, 2020, to discuss the challenges facing judges, staff, counsel, respondents, and the public during EOIR’s phased reopening of the immigration courts.
Canadian Federal Court Rules Safe Third Country Agreement with U.S. Unconstitutional
The Canadian Federal Court ruled that the Safe Third Country Agreement which allows Canada to send certain refugees back to the United States, is unconstitutional because the U.S. is no longer a safe country for refugees sent back from Canada due to the risk of imprisonment.
USCIS Provides RAIO Combined Training Course on Core Values and Guiding Principles for RAIO Employees
USCIS provided the RAIO Combined Training Program on core values and guiding principles for RAIO employees. This module provides an overview of the RAIO Directorate, its structure, mission, core values, and guiding principles.
CA5 Finds Substantial Evidence Supported IJ’s Adverse Credibility Determination as to LGBT Asylum Seeker from El Salvador
The court upheld the BIA’s finding that the IJ’s adverse credibility determination was not clearly erroneous under the totality of the circumstances, and found that the Salvadoran petitioner could not prevail on his due process claim. (Santos-Alvarado v. Barr, 7/21/20)
Advocacy Organizations File Lawsuit Challenging New DHS Asylum EAD Rules
Several immigration advocacy organizations filed a lawsuit in the U.S. District Court for the District of Maryland challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers. (Casa de Maryland, Inc., et al. v. Wolf, et al., 7/21/20)
CRS Releases Legal Sidebar on U.S. Immigration Laws Regulating the Admission and Exclusion of Noncitizens at the Border
CRS updated its legal sidebar on laws governing the admission and exclusion of noncitizens at the border, including procedures for asylum seekers and circumstances in which arriving noncitizens may be detained; special rules for treatment of UACs; recent policy changes; and legislative proposals.
CA6 Finds BIA Failed to Consider Evidence of Russian Petitioner’s Threatened Prosecution in Assessing His Asylum Claim
Granting the petition for review, the court held that the BIA erred in disregarding evidence that the petitioner, who had engaged in anticorruption whistleblowing activities, would be criminally prosecuted for his political opinion if he was returned to Russia. (Skripkov v. Barr, 7/20/20)
D.C. Circuit Upholds Injunction Against Enforcement of Two of Government’s New Credible Fear Policies
The court affirmed in part the district court’s injunction against enforcement of the government’s new credible fear policies, finding that the “condoned-or-completely-helpless” standard and USCIS’s choice-of-law policy were arbitrary and capricious. (Grace, et al. v. Barr, et al., 7/17/20)
EOIR Announces 46 New Immigration Judges
EOIR announced the investiture of 46 new immigration judges, including three assistant chief immigration judges. Per EOIR, this brings the immigration judge corps to 509, which is the highest total ever. Notice includes the judges’ biographical information and courts of appointment.
EOIR to Resume Hearings in Non-Detained Cases at the Arlington Immigration Court
EOIR announced that it will resume non-detained individual (merits) hearings and master calendar dockets involving relatively small numbers of respondents at the Arlington Immigration Court on July 20, 2020. The option to file by email at the court will end on September 20, 2020.
AILA, the Council, and the Justice Campaign Submit Comments Opposing Proposed Asylum Rule
AILA, the Council, and the Justice Campaign submitted joint comments opposing an EOIR/USCIS proposed rule on Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review. The rule will return vulnerable individuals who deserve protection to danger and potential death.
BIA Rules On DHS’s Authority to Return Individuals to a Contiguous Foreign Territory Under MPP
BIA ruled that under INA §235(b)2(c), an individual who is arriving on land from a contiguous foreign territory may be returned by DHS to that country pursuant to MPP, regardless of whether the individual arrives at or between a designated POE. Matter of M-D-C-V-, 28 I&N Dec. 18 (BIA 2020)
Attorney General Vacates BIA’s Decision in Matter of O-F-A-S-
Clarifying the proper approach for determining “official capacity” for the purpose of deciding CAT protection, the AG vacated the BIA’s decision in Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019), and remanded the case for review. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020)
The Roundtable of Former Immigration Judges Submits Comment on Proposed Plans to End Asylum
The Roundtable of Former Immigration Judges sent a letter to EOIR and USCIS opposing the proposed rule that would make multiple changes to regulations governing asylum, withholding of removal, and CAT protection. The Roundtable urge the departments to withdraw all sections of the proposed rule.