** LEGAL UPDATE **
On December 11, 2020 the Department of Justice (DOJ) and Department of Homeland Security (DHS) published new regulations in the Federal Register that would make it more difficult for people to seek asylum and other humanitarian protections in the United States. Asylum-seekers will, if the rules are allowed to stand, face new legal hurdles and the possibility that the government will dismiss claims at early stages in the legal process. Many commentators refer to this as the "Death to Asylum" rule.
The new regulations were originally set to go into effect on January 11, 2021. However, a U.S. District Court in San Francisco issued an injunction blocking them stating that acting Homeland Security Secretary Chad Wolf lacked the authority to promulgate them in the first place.
In addition, President Joe Biden was inaugurated on January 20, 2021, and soon after, ordered "a series of actions to restore the U.S. asylum system, including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers."
Keeping in mind that these new regulations might ultimately be irrelevant, here's an overview of the biggest changes contained within them: They would affect the Credible Fear Interview (CFI) process and the basic legal standards for asylum eligibility in the United States, as discussed below.
First, under the new regulations, people who enter the U.S. unlawfully and are encountered within close proximity to the border and then pass an initial asylum screening (also known as a Credible Fear Interview or “CFI”) will be put into stream-lined “asylum-only” (I.N.A. Section 235) hearings.
In the past, they would have been put into standard (I.N.A. Section 240) removal proceedings, which would have allowed them to apply for any form of defense to removal. These special asylum-only hearings will allow the U.S. government to more quickly deny claims and make asylum-seekers ineligible for other forms of immigration relief.
The new rule also instructs Immigration Judges (IJs) to consider BIA and Attorney General decisions when reviewing appeals of people given negative CFI determinations by asylum officers. Recent BIA and especially Attorney General decisions under the Trump administration have severely restricted asylum eligibility (especially for victims of domestic violence and gang violence), and will lead to more CFI denial appeals also being denied by Immigration Judges.
The new regulations would make it more difficult to meet the legal standard to qualify for complementary forms of humanitarian protection, including withholding of removal and protection under the Convention Against Torture (CAT). They also instruct officers to consider whether asylum-seekers are subject to any bars to asylum, such as criminal and internal relocation bars, at the CFI stage of the process.
Finally, people who receive a negative CFI determination by an asylum officer would have to affirmatively ask to appeal the decision to an Immigration Judge, rather than automatically being given the option to do so.
The regulations expand the definition of a “frivolous” asylum application from one that fabricates a material element of a claim to one that has any untrue information or one that is deemed prohibited by “applicable law” even though asylum law is highly complex and lawyers and judges often disagree over which types of claims are valid under the law.
The new regulations also allow Immigration Judges to pretermit (call a halt to) an asylum application if they think an applicant cannot establish a prima facie (“on its face”) case for asylum. If an Immigration Judge pretermitted a case, the asylum-seeker would not have the chance to present legal arguments and evidence in an individual hearing.
The regulations also limit the definition of a common protected ground for asylum know as “political opinion.” No longer would political opinion encompass opposition to a non-state actor (such as a terrorist, gang, or guerilla group).
Furthermore, under the new rules, “persecution” would be more narrowly defined. Instead of showing general harm such as detention or extortion the asylum seeker would have to demonstrate having been the victim of harm inflicted solely to overcome or punish a protected characteristic (race, religion, nationality, particular social group and/or political opinion).
The regulations additionally allow the decision-maker to presume that an asylum-seeker can internally relocate within the home country if his or her persecutor is a non-state actor.
The new regulations allow the decision maker to consider unlawful entry or use of fraudulent documents by an asylum-seeker as a discretionary basis for denial as well.
Finally, the regulations would expand the U.S. government’s ability to claim that an asylum-seeker was firmly resettled in a country he or she was present in (likely in transit, as with people passing through Mexico) before arriving in the United States. Under the new rule, an asylum-seeker could be barred from seeking asylum in the United States if he or she was eligible for a permanent status in another country or had an indefinitely renewable status there or could have been eligible for one.
If planning to seek asylum in the United States, consult an attorney for a full analysis of whether any of these regulations have gone into effect and could impact your application for asylum.
Effective Date: March 3, 2021