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
Local EOIR Liaison Meeting Minutes with ACIJ Clay Martin and Court Administrator Ponce De Leon
Local EOIR Liaison meeting minutes with ACIJ Clay Martin and Court Administrator Ponce De Leon at the San Antonio Immigration Court. Topics discussed include MPP, NTA filing issues, E-filing, and more.
CA9 Finds IJ and BIA Erred in Relying on Lack of Corroboration to Support Adverse Credibility Determination
Granting the petition for review, the court held that the petitioner, who alleged that Chinese government officials had subjected her to a forced abortion, was entitled to notice and an opportunity to produce corroborating evidence or explain why it was unavailable. (Qiu v. Barr, 12/11/19)
CA8 Finds Guatemalan Humanitarian Asylum Applicants Failed to Show Past Persecution Based on a Protected Ground
The court held that the BIA did not abuse its discretion in denying the petitioners’ request for humanitarian asylum, because the petitioners had failed to make an initial showing of refugee status by connecting their past persecution to a protected ground. (Mejia-Lopez v. Barr, 12/11/19)
CA8 Upholds Denial of Application for Withholding of Removal Based on Petitioner’s Membership in His Family
The court held that substantial evidence in the record supported the IJ and BIA’s finding that the petitioner had failed to establish a clear probability that he would suffer persecution in Mexico on account of his membership in his family. (De La Rosa Garcia v. Barr, 12/10/19)
Former Immigration Judges Send Letter Expressing Concern Over Lack of Public Access to MPP Hearings
On 12/10/19, former immigration judges sent a letter to EOIR requesting that it investigate violations of due process rights during MPP hearings and ensure that the public has appropriate access to all immigration courts.
CA1 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in China Regarding Religious Persecution
The court held that the BIA did not abuse its discretion in denying as untimely the petitioner’s motion to reopen, because the evidence in the record showed that religious persecution in China had not sufficiently increased since the petitioner’s hearing in 2011. (Lin v. Barr, 12/10/19)
BIA Rules That Torturous Conduct by a Public Official Not Acting in an Official Capacity Is Not Covered by CAT
BIA ruled that only torturous conduct committed by a public official acting “in an official capacity” “under color of law” is covered by CAT. Conduct by an official not acting in an official capacity is not covered by the Convention. Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019)
ACLU Files Lawsuit Challenging Expedited Removal Pilot Program
The ACLU of Texas, the ACLU National, and the ACLU of DC filed a lawsuit challenging an “expedited removal” pilot program used to hold asylum seekers in CBP facilities without effective access to attorneys before they are removed. (Las Americas Immigrant Advocacy Center v. Wolf, 12/5/19)
BuzzFeed News Obtains DHS’s Migrant Protection Protocols Red Team Report
BuzzFeed News published a draft DHS report on the Migrant Protection Protocols (MPP) that details how “some U.S. border officials apparently pressured asylum officers to deny immigrants entry and prevent others from being interviewed.”
CBP Statements on Travel Delays at Port of Nogales
CBP has released several statements on travel delays at the Port of Nogales following an increase in asylum seekers using vehicle lanes to seek entry into the United States. CBP has been employing Migrant Protection Protocols and metering in Arizona.
CA5 Upholds Asylum Denial to Honduran Woman Who Was Harassed by Gang Members After Her Brother’s Murder
The court upheld the denial of asylum, finding that there was substantial evidence to conclude that the hardships petitioner had experienced in Honduras following her brother’s murder—namely, threats and men following her—did not constitute past persecution. (Martinez-Lopez v. Barr, 12/4/19)
CA11 Says “Women in Mexico Who Are Unable to Leave Their Domestic Relationships” Is Not a Cognizable Particular Social Group
The court held that, in light of the Attorney General’s 2018 decision in Matter of A-B-, “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the INA. (Amezcua-Preciado v. Att’y Gen., 12/3/19)
AILA Submits Amicus Brief on Migrant Protection Protocol (MPP) Proceedings
AILA submitted an amicus brief arguing that given the pervasive and systemic due process violations present in MPP, it would be unjust to issue an in absentia order against a MPP respondent who failed to appear. Absent the ability to enter an in absentia order, termination is the only just result.
Presidential Determination on Refugee Admissions for FY2020
President Trump issued a determination on 11/1/19, setting the refugee admissions ceiling for FY2020 at 18,000. The determination also provides regional ceilings and admissions allocations based on category. (84 FR 65903, 11/29/19)
Practice Pointer: USCIS Rejection of Form I-589 Due to Claimed Incompleteness
Amid reports suggesting that USCIS is more frequently rejecting Form I-589 due to claimed incompleteness, this practice pointer provides tips regarding completion of the form.
Why Immigration Lawyers Should Care about the TRAP Act – It Will Address INTERPOL Abuse
AILA Member Sandra Grossman highlights the efforts in Congress to address the abuse of INTERPOL Red Notices in the U.S. immigration context and urges support for the TRAP Act which would move INTERPOL to improve transparency and deter abuse of their system.
CA9 Holds Petitioner Who Filed a Frivolous Asylum Application Was Barred from Receiving a Waiver of Removal Under INA §237(a)(1)(H)
The court denied the petition for review, holding that the frivolous asylum application bar at INA §208(d)(6) precludes an applicant from receiving all benefits under the INA, including a waiver of removal under INA §237(a)(1)(H). (Manhani v. Barr, 11/25/19)
Congress Requests Information on the Management of the Tent Courts in Laredo and Brownsville
Forty-one members of Congress sent a letter to Acting Secretary of Homeland Security Chad Wolf and the Attorney General William Bar requesting information on the management of the tent courts in Laredo and Brownsville.
Dara Lind Releases IJ Guidance Following the Federal Court Order in Al Otro Lado v. Wolf
A federal judge limited asylum ban 2.0 from being applied to individuals prevented from accessing the U.S. asylum process before the asylum ban was implemented. After ProPublica reported that IJs adjudicating these cases had not been notified about this decision, DOJ shared new guidance.
CA5 Holds It Lacks Jurisdiction to Review Motion to Reopen That VWP Participant Was Not Entitled to File
The court held that, as a Visa Waiver Program (VWP) participant, petitioner was limited to contesting his removal on the basis of an asylum application, and thus that INA §217(b)(2) barred him from challenging his deprivation of a hearing via a motion to reopen. (Lavery v. Barr, 11/22/19)
Congressional Letter to CBP Expresses Concerns over Truncated Asylum Programs
Members of Congress sent a letter led by Representative Veronica Escobar (D-TX) to the Acting Commissioner of CBP, Mark A. Morgan, expressing concerns over two new programs subjecting vulnerable individuals in El Paso, Texas to truncated asylum review processes.
EOIR to Open New Immigration Court in Los Angeles
EOIR will open a new immigration court in Los Angeles, on December 9, 2019. The Van Nuys Blvd. immigration court will cover Kern, San Luis Obispo, Santa Barbara, and Ventura counties, and parts of Los Angeles County. Notice includes court’s location, contact information, and hours of operation.
BIA Rescinds In Absentia Order Against Respondents Formerly in MPP
Unpublished BIA decision rescinds in absentia order sua sponte in light of DHS non-opposition stating that respondents did not receive notice after being removed from the Migrant Protection Program. Special thanks to IRAC. (Matter of M-D-R-D-, 11/21/19)
Prepping for the Next Debate: Where the Candidates Stand on Immigration
Greg Chen and Cara Pavlak highlight the positions of the Democratic presidential candidates on immigration and encourage readers to use the AILA 2020 Election Guide, and the accompanying social media toolkit, to engage on immigration during the debate.
BIA Finds Certain Informants to Be a Cognizable Social Group
Unpublished BIA decision holds “noncriminal informants that have testified against criminals” is a cognizable particular social group. Special thanks to IRAC. (Matter of L-M-M-D-, 11/19/19)