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United States law enshrines the protections of the international Refugee Convention, drafted in the wake of the horrors of World War II. The law provides that any person “physically present in the United States or who arrives in the United States … irrespective of such [person’s] status, may apply for asylum...”

For asylum seekers, making it to the United States often means they have found safety from persecution, torture, and sometimes death. But upon their arrival, they face a new odyssey of navigating complex U.S. immigration laws and an increasingly restrictive environment that bars many bona fide asylum seekers from winning protection. Under the Trump administration, these challenges have become even greater.

Since 2017, the federal government has unleashed relentless attacks on the U.S. asylum system and against the people who seek safety within our borders. Internal memos have revealed these efforts to be concerted, organized, and implemented toward the goal of ending asylum in the United States.

NIJC works to combat these injustices and uphold the U.S. obligation to provide refuge for men, women, and children seeking freedom from persecution.

Below is a timeline highlighting the major events comprising the administration’s assault on asylum seekers.

 

A Timeline of the Trump Administration’s Efforts to End Asylum

 

November 2019

  • The Departments of Homeland Security (DHS) and Justice issue an interim final rule (IFR) effective immediately, that allows the U.S. to enter into "safe" third country agreements with Honduras, El Salvador, and Guatemala
    • This rule would prohibit individuals from applying for asylum in the U.S. if the following 4 requirements are met: 1) the U.S. entered into a bilateral or multi-lateral agreement; 2) at least one of the signatory countries is a "third country" for the asylum seeker; the asylum seeker's "life or freedom would not be threatened in that third country" on account of their race, religion, nationality, political opinion, or particular social group; and 4) the "third country provides [asylum seekers] removed there...'access to a full and fair procedure for determining a claim to asylum or equivalent temporary protections.'" Under this new rule, asylum officers and CBP would have the discretion to conduct threshold screenings to determine which country will consider an asylum seeker's claim.
    • Status: Removals to Guatemala began in late November. The 30-day comment period for the rule remains open until December 19, 2019.
       
  • The Department of Homeland Security (DHS) announces changes to the regulations controlling work permits while an asylum case is pending and blocks access to asylum for certain groups based on how and when they entered.
    • If finalized, the proposed rule would, among other changes, extend the time an asylum applicant would have to wait before submitting an application for a work permit from 180 days to 365 ays; exclude individuals who did not lawfully enter the U.S. through a port of entry from being eligible to apply for asylum; and exclude individuals who did not file an asylum application within one year of their last entry from being eligible for asylum. The United States' legal and moral obligation to protect those seeking safety from persecution includes the obligation to ensure that those seeking and those granted asylum are able to access the benefits and services that enable them to live a full life. Chipping away at the ability of asylum seekers to access this form of relief and the ability to work directly contravenes these obligations.
    • Status: The comment period for the proposed rule remains open until January 13, 2020.​​​​​​​
  • ​​​​​​​U.S. Citizenship and Immigration Services (USCIS) publishes a proposed rule that would eliminate the 30-day processing time for initial employment authorization documents (EADs) given to asylum seekers.
    • ​​​​​​​A delay in the ability to work will cause grave consequences for asylum seekers. Swiftly gaining a work permit is a crucial first step for asylum seekers toward finding stability, safety, and the support necessary to begin rebuilding a full and productive life. Without first receiving a work permit, an asylum seeker would be unable to obtain any form of identification, such as a driver's license or social security number. This would effectively inhibit their ability to access social benefits and do things U.S. citizens take for granted such as opening a bank account, getting a library card, or even registering their child for school.
    • Status: The comment period for the proposed rule closed on November 08, 2019. 

September 2019

  • Administration reaches agreement with Honduras, effectively blocking asylum seekers from reaching the United States. 
    • Similar to a deal reached with Guatemala and El Salvador, this new agreement will enable the U.S. to reject asylum seekers who have not first applied for asylum in Honduras. Once more, it is clear the Administration has a complete disregard for the underlying reasons many Central Americans flee their home country. In Honduras, "[t]wo-thirds of its roughly 9 million people live in poverty," with rampant gang and gender-based violence. Forcing asylum seekers to remain in a country with their persecutor can actually be a matter of life or death.
    • Status: No explicit details about the agreement or when it could be implemented have been released.
       
  • Acting Department of Homeland Security (DHS) Secretary McAleenan announces DHS will no longer allow any arriving asylum seekers to be released into the community
    • Acting Secretary announced that asylum seeking migrant families, who do not express a fear of return to their home country, would no longer be released into the interior of the United States after being arrested and detained by U.S. Customs and Border Patrol (CBP); however, there will be some humanitarian and medical exceptions. For those families who do express a fear, they will be returned to Mexico under Migrant Protection Persecution Protocol (MPP) policy. This will only exacerbate the violence and danger asylum seekers stuck in Mexico currently face.
    • Status: The timing of this new policy is unclear but more details will likely be forthcoming.
       
  • United States and El Salvador sign a bilateral agreement as a way to combat the flow of migration from Central America.
    • In another callous attempt to stop the flow of migration from Central America, the United States has entered into an agreement with El Salvador to have the Centram American country to develop its asylum process so that migrants will first seek asylum there. Acting DHS Secretary McAleenan stated in a press conference with El Salvador's foreign minister, Alexandra Hill Tinoco, that the agreement will "provide opportunities [for asylum seekers] to seek protection. . . as close as possible to the origin of individuals that need it . . . ." The reality is that El Salvador should be one of the last places for an asylum seeker to be; in fact, the State Department's travel advisory for El Salvador asks potential visitors to "[r]econsider travel to El Salvador due to crime," stating "[v]iolent crime, such as murder, assault, rape, and armed robbery is common," and that "[g]ang activity, such as extortion, violent street crime . . . is widespread." 
    • Status: Neither text nor details of the agreement have been formally released and negotiations around the agreement are ongoing.
       
  • Supreme court allows full implementation of Asylum Ban 2.0 (barring migrants who cross through another country prior to arriving at the U.S. border from asylum eligibility)
    • In July 2019, the administration published an Interim Final Rule banning all people, including children, who have traveled through another country to reach the United States from applying fr asylum. This rule is a de facto asylum ban for nearly all asylum seekers seeking to enter the U.S. through the southern border.
    • Status: The rule is now fully in effect, after the Supreme Court stayed a partial Temporary Restraining Order.  A federal district court judge in California issued a Temporary Restraining Order on July 16, 2019 in California in East Bay Sanctuary Covenant et al. v. Trump, finding the ban to likely violate the asylum provisions of U.S. federal law and raising concerns regarding the administration's failure to allow for notice-and-comment rulemaking.The government appealed to the U.S. Circuit Court of Appeals for the 9th Circuit, which kept the injunction in place only with regard to the geographic region covered by the 9th Circuit (California and Arizona) and allowed the government to implement the rule across the rest of the southern border. On September 11th, the Supreme Court issued a decision allowing the ban to be fully implemented during the pendency of litigation.

 

July 2019

  • All undocumented immigrants in the interior become targets for arrests and deportation through new Interim Final Rule expanding procedures that expedite deportation.
    • Pursuant to another major regulatory change implemented as an Interim Final Rule, any undocumented individual who cannot prove to have been continuously present in the U.S. for at least two years can be placed in a fast-track deportation process, without the opportunity to plead their case in front of an immigration judge or get the help of an attorney. Expedited removal proceedings do allow individuals to seek referral to an immigration court proceeding to seek asylum, but the program has been consistently criticized for officers' failure to identify legitimate asylum seekers, resulting in the return of many to harm.
    • StatusBecause of its issuance as an Interim Final Rule, the expansion of expedited removal is already in place. A lawsuit challenging this inhumane rule was filed on August 6, 2019.
       
  • Attorney General Barr certifies yet another case to himself and further diminishes grounds of asylum—Matter of L-E-A-
    • Attorney General Barr reversed yet another BIA decision, this time strictly limiting asylum eligibility for individuals targeted and harmed due to their family membership.
    • Status: This ruling effectively limits, or in some cases, eliminates, the possibility of even presenting a claim for asylum for individuals who are fleeing harm on the basis of their membership in a particular family.
       
  • New pilot program gives border patrol officers the authority to conduct credible fear interviews
    • Stephen Miller has been promoting the implementation and expansion of a pilot program that would allow CBP officers, rather than trained asylum officers working under USCIS supervision, to conduct credible fear interviews. Requiring asylum seekers, recently arrived and fleeing fresh trauma, to articulate their fear of return to uniformed CBP officers will certainly mean that many asylum seekers will be forcibly returned to harm and death.
    • Status: Mark Morgan, Acting Chief of CBP, testified to Congress on July 2019 that CBP officers are currently undergoing training in order to conduct these types of interviews. In September 2019, it was reported that CBP agents were beginning to screen families for credible fear, with CBP agents at the Dilley Family Residential Center identifying themselves to children and families as "asylum officers."
       
  • The administration announces it has reached a deal with Guatemala to halt the flow of Central American migrants to the U.S.
    • In July the U.S. government announced it had reached an agreement with the government of Guatemala. Although the details are uncertain, the administration seems to consider the agreement to set the stage for a "safe third country" agreement that would require all asylum seekers arriving at the southern border who passed through Guatemala, other than Guatemalans, to be transferred to Guatemala to present an asylum claim there. The announcement of the agreement has prompted widespread condemnation in both countries, as it appears to constitute a back-door sealing of the southern border to asylum in the U.S. and would likely prompt an unmitigated political and humanitarian crisis in Guatemala, one of the most dangerous countries in the world
    • Status: The agreement was published in the Federal Register on November 19, 2019.

 

May 2019

  • USCIS issues a memo attempting to undercut protections provided to unaccompanied children during the asylum process
    • The memo undermines the few but essential protections provided to unaccompanied children in their asylum proceedings, including exemption from the one-year filing deadline and non-adversarial asylum interviews with an asylum officer, by requiring immigration adjudicators to continually re-adjudicate a child's designation as unaccompanied. These new procedures undoubtedly impact children's ability to effectively access their right to asylum by stripping away protections specifically designed to reflect the vulnerability of children who arrive at a border alone.
    • Status: The memo became effective June 30, 2019. In August 2019, a federal district court issued a Temporary Restraining Order prohibiting USCIS's implementation of the memo. 

 

April 2019

  • The White House releases a memo calling for regulations that would change asylum policies to be drafted within 90 days.
    • Such regulations would include adding fees to the asylum application and work permit application, precluding asylum seekers from working lawfully during their asylum proceedings, and placing a 180 day limit for cases to be completely adjudicated with an immigration court, among others. 
    • Status: The 90-day deadline was July 29, 2019. There are rumors that one DOJ regulation has been or will soon be sent to the Office of Management and Budget (OMB) for review but the details of any pending rule are far from certain.

 

January 2019

 

November 2018

 

September 2018

  • DHS and the Department of Health and Human Services (HHS) attempt to dismantle the Flores settlement agreement and the Trafficking of Victims Protection Reauthorization Act of 2008 (TVPRA) through the regulatory process
    • DHS and HHS both issued notices in the federal register of a proposed rule that would, among other things, allow for the indefinite detention of families, enable DHS to self-license family detention facilities, and undermine unaccompanied children's rights to a bond hearing. Despite receipt of more than 100,000 comments on the proposed rule, DHS and HHS proceeded to publish the rule in final form in August 2019, with few meaningful changes from the proposed rule. The publication marks the latest step in the administration's ongoing efforts to irreparably alter the Flores settlement, a binding court settlement providing protections and guidelines related to the timing and conditions of detention for migrant children.
    • Status: The final Flores rule was published on August 23, 2019 and will go into effect on October 22, 2019; litigation challenging the final rule is expected imminently.
       
  • Official "turn back" (or metering) policy executed by CBP is confirmed in the Office of the Inspector General (OIG) report about family separation
    • The OIG report stated that the practice of metering, which constitutes the turning-back of asylum seekers at ports of entry where they are forced to wait in haphazardly operated queues amounting to weeks or months of delay, had been a tactic used by CBP going back to 2016. This policy "compounds other longstanding border-wide tactics that CBP has implemented to prevent migrants from applying for asylum in the U.S., such as lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delays, and threats—including the threat of family separation."
    • Status: Litigation challenging the legality of metering is pending in the U.S. District Court for the Southern District of California, where the judge has rejected the governments second attempt to dismiss the case (Al Otro Lado v. McAleenan).

 

June 2018

  • Then-Attorney General Sessions severely limits the availability of asylum for survivors of domestic violence and gang violence (Matter of A-B-)
    • Again utilizing his ability to certify BIA cases to himself, Sessions overruled Matter of A-B-effectively limiting the availability of asylum to most individuals fleeing gender-based violence or violence at the hands of gangs of gangs and making it easier for ICE counsel to argue for deportation
    • Status: In December 2018, a federal court issued a decision generally preventing the administration from implementing this and other policies. Recently, 21 state attorneys general filed an amicus brief in support of the court's decision. The next hearing date regarding the government's appeal has not yet been set. 

 

April 2018

  • The Department of Justice (DOJ) requires immigration court judges to comply with case quotas
    • Despite opposition from the National Association of Immigration Judges, this policy requires immigration judges to make final rulings on 700 cases per year (about three per day) with repercussions—either being sent to a different immigration court or termination—if they do not comply. With judges under pressure to rush through court proceedings, the policy threatens the ability of asylum seekers to properly prepare and present their case. 
    • Status: This policy went into effect in the fall of 2018. The combination of this and several other unprecedented policies have resulted in chaos in the immigration court system, including increasing the backlog crisis by 25 percent rather than cutting down the number of pending cases that continues to creep closer to one million
       
  • Attorney General Sessions introduces the "zero-tolerance" policy, triggering widespread family separations
    • The "zero tolerance" policy, announced by Sessions via memo, required that all arriving migrants, including asylum seekers, be referred to the DOJ for criminal prosecution for illegal entry or reentry. What resulted was the mass systemic separation of families, as parents were prosecuted and children were taken into custody, causing irreversible, life-long trauma to over 2,600 children. Subsequently revealed internal government memos show that this policy was explicitly intended to serve as a deterrence mechanism for asylum seekers. 
    • Status: Family separation is still happening on a mass scale despite an Executive Order in July 2018 that allegedly ended the zero-tolerance policy and despite a court order enjoining the practice (more than 900 separations in the year following the court order). Separations sometimes involve prosecutions but not always; in other cases the Department of Homeland Security (DHS) cites vague and often unsubstantiated reasons such as the parent's criminal history, gang affiliations, or even medical issues such as HIV status as justification for separation. 
       
  • ICE, Customs and Border Protection (CBP), and the Office of Refugee Resettlement (ORR) enter into an agreement to share information obtained from unaccompanied children amongst the three agencies, and inserting ICE into the approval process for reunification of unaccompanied children with sponsors.

 

March 2018

  • Attorney General Jeff Sessions vacates decision in Matter of E-F-H-L-, eviscerating asylum seekers' due process rights in immigration court
    • In Matter of E-F-H-L-, Sessions utilized a provision of law that was used only sparingly under previous administrations to certify to himself and then overturn a decision of the administrative appellate body known as the Board of Immigration Appeals (BIA), eviscerating the rights of asylum seekers to testify on their own behalf before they can be denied asylum and/or deported. 
    • Status: In full force. Individual applicants may challenge the application of the case in the circuit courts of appeal, but for the vast majority of immigrants who are unrepresented, this option is far out of reach.

July 2017

  • U.S. Immigration and Customs Enforcement (ICE) ends the Family Case Management Program, signaling a concerted policy of prolonged and indefinite detention of asylum seekers. 
    • The Family Case Management Program allowed some asylum seekers to remain in the community during their asylum proceedings while receiving case management services including referrals to legal and social services. The Trump administration terminated the policy for blatantly political reasons in April 2017, and subsequently unrolled a de facto policy of the prolonged and indefinite detention of asylum seekers—in violation of ICE's own policy directive requiring that the agency release asylum seekers on humanitarian parole if they have a sponsor and pose no community safety risk. By the summer of 2019, ICE's own data revealed it to be jailing approximately 9,000 immigrants who had already been found to have a credible or reasonable fear of persecution or torture.
    • Status: ICE is facing federal litigation for its systemic violation of its own parole guidance. In August 2018, a federal court in Damus v. McAleenan ordered ICE to resume individualized release considerations in five field offices, an order plaintiffs have had to go back to court to enforce. In Heredia-Mons v. McAleenan, plaintiffs have produced evidence that only two of 130 cases out of the New Orleans ICE Field Office were granted in 2018. Both cases are ongoing. 

 

February 2017

  • U.S. Citizenship and Immigration Services (USCIS) raises the threshold for demonstrating credible fear in asylum interviews
    • This new guideline ordered asylum officers to be stricter in assessing claims of fear made during "credible fear interviews," the threshold interview that is required before an asylum seeker is allowed to present their claim to an immigration judge. Immigration law experts warned that the heightened standards would result in erroneous deportations of asylum seekers back to harm or death.
    • Status: The implementation of this policy quickly resulted in a high rate of denials, causing a significant rise in deportations of those with meritorious asylum claims they were never permitted to present fully. 

 

January 2017

  • Trump issues Executive Order 13767, "Border Security and Immigration Enforcement Improvements"
    • The Executive Order, which was issued along with a parallel Executive Order focusing on immigration policies in the interior of the United States, put forth a blueprint for many of the anti-asylum and anti-immigrant policies the administration has implemented since, including the construction of a border wall, the increased and prolonged jailing of asylum seekers, and the increased use of expedited deportation procedures.
    • Status: implementation is ongoing. Many of these policies, including expanded expedited case processing and the prolonged detention of asylum seekers, have already been actualized.

     

Download a copy of this timeline.

Last updated: November 2019

Henriquez-Rivas v. Holder
In Henriquez-Rivas v. Holder, NIJC filed an amicus brief in support of Ms. Henriquez-Rivas, an asylum-seeker from El Salvador.  When Ms. Henriquez-Rivas was twelve years old, she witnessed members of Mara Salvatrucha (“MS”) kill her father.   She then testified in court against three…

 

Recommendations

  • Eliminate summary removal procedures that lack due process and prevent asylum seekers for pursuing existing protections. All asylum seekers should have the opportunity to present their case to an immigration judge, including those who have previously been deported.
  • DHS should release asylum seekers on parole in accordance with the 2009 ICE policy directive.
  • Congress must repeal the one-year filing deadline to ensure that refugees are not denied protection based on a technicality. The deadline is unnecessary, arbitrary, and a violation of the U.S. government’s commitments to refugees’ basic human rights.
  • Appoint counsel to everyone in immigration proceedings. Access to counsel is critical to help people, especially children, individuals in detention, and vulnerable populations, navigate the complex immigration system.