CHANGES TO PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

In a 419-page publication, the Department of Homeland Security has issued a “final rule” on how asylum and withholding of removal cases are supposed to be processed, and what standards are supposed to be used in determining these cases. This “final rule” is set to take effect on January 11, 2021, just days before President-Elect Biden is set to be sworn in as the 46th President of the United States. The final rule seeks to exclude a number of people from seeking asylum who would have been eligible previously, examples of this include:

• Central Americans escaping gang violence
• Women fleeing domestic abuse
• Individuals escaping persecution because of sexual orientation or gender identity

Important terms have also been redefined under this final rule. For example, for an applicant to prove ‘persecution,’ he or she must now show “the infliction of a severe level of harm” in order to qualify. Also, this final rule directs immigration judges to deny asylum to any refugee who entered the United States improperly (even though a federal court has already ruled against this) and directs immigration judges to deny asylum to anyone who changed planes or transited through another country because they did not apply for asylum there. These new provisions even allow immigration judges to deny asylum without a hearing on the grounds that the claim on its face doesn’t appear to meet the new standards imposed. It is important to speak to an experienced federal immigration crimes attorney for answers to any specific questions about how these changes could affect you or someone you love. 

TRUMP ADMINISTRATION’S CONTINUED TARGETING OF REFUGEES

The Trump administration has never tried to hide its specific focus against immigration into the United States. Most specifically, President Trump’s policies have directly harmed refugees and asylum seekers. This final rule is a pretty blatant attempt by the Trump administration to both change existing immigration law and to slow down any changes by incoming President Biden. In previous blogs, we have discussed the Trump administration’s targeting of migrant families and children, and a Board of Immigration Appeals ruling that “streamlined” due process for asylum claims, among other attacks on immigrants. Our office was successful, however, in a Sixth Circuit Court of Appeals case that requires the Board of Immigration Appeals to consider relevant evidence and explain any reasoning for decisions on asylum claims. While the final rule is set to take effect, it will not be embraced by the incoming administration as it is against the promised immigration policies of President-Elect Biden.

WHY THIS IS IMPORTANT

These changes to the policy and procedure of asylum and withholding of removal cases are sure to face legal challenges. Congress can formally disapprove of the measures within 60 legislative working days if they choose. If President-Elect Biden is not able to have Congress act within that time, then he will have to issue his own changes, which will of course take time. The provisions of the “final rule” have come be known as the “death to asylum rule,” meant to essentially kill most all people’s ability to seek asylum and close the door on refugees. In the past four years under President Trump, we have witnessed immigration procedure and policy made more difficult, complicated, and discouraging. Simple forms and applications are not so straightforward anymore, on purpose. This final rule is just but another example of the importance of having experienced and knowledgeable immigration law assistance when trying to get anything accomplished in dealing with United States Citizenship and Immigration Services (USCIS).