A Timeline of the Trump Administration’s Efforts to End Asylum
- Trump administration unleashes torrent of final regulations targeting asylum seekers (Pangea Legal Servs. v. DHS; Immigration Equality v. DHS; Human Rights First v. Wolf; Catholic Legal Immigration Network v. EOIR; NIJC v. EOIR)
Far from winding down, the Trump administration released 7 final rules in one week that will have devastating consequences for asylum seekers. These rules (1) send asylum seekers to El Salvador, replicating the agreement with Guatemala that already endangered 1000+ asylum seekers, primarily women and children (see February 2020 for more information); (2) impose a historic fee on asylum applications and 800% fee increase for appeals (see March 2020); (3) overhaul the asylum system and imposing a plethora of new bars on relief (see June 2020); (4) label asylum seekers a “danger to national security” under the pretense of public health (see July 2020); (5) reinstate the “transit ban,” barring asylum seekers who traveled through another country (see July 2020); (6) tamper with access to appellate review (see August 2020); (7) and deny protection to asylum seekers and torture survivors if they fail to apply within two weeks of their first hearing (see September 2020).
Status: All these rules are final, unless enjoined by a federal court. A federal lawsuit seeks an injunction of the historic fees (2) that would thwart access to justice of asylum seekers and noncitizens. Three different lawsuits have already sought to halt the overhaul (3) of asylum rules, leading to a nationwide halt three days before its implementation; meanwhile the transit ban (5) and the agreements that permit offshoring asylum seekers to Central America are subject to ongoing litigation. NIJC filed another federal lawsuit to halt the implementation of a two-week deadline on all asylum applications (7).
Complaint denounces Trump administration’s rampant use of criminal prosecutions for asylum seekers seeking protection
US laws criminalizing entry and re-entry in the U.S. were first proposed by a segregationist US Senator, who advocated for racist groups such as the KKK. Since taking office, the Trump administration prioritized migrant prosecutions and used them to separate families and deter asylum seekers from seeking protection.
Status: Migrant prosecutions continue daily. NIJC filed a complaint on behalf of three asylum seekers with the Department of Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties and Office of Inspector General. NIJC asks the DHS inspector general and civil rights offices to investigate these cases and the violation of their rights under U.S. asylum law.
Proposed rule makes challenging erroneous removal orders near impossibility for asylum seekers and noncitizens
The Executive Office for Immigration Review (EOIR) proposed a regulation to limit the ability to reopen a matter that was erroneously decided, making it almost impossible to stop – or “stay” – a deportation to avert irreparable harm. This rule would bar asylum seekers and noncitizens from reopening their cases even where they suffered ineffective assistance of counsel.
Status: Pending issuance of final rule. NIJC filed a comment calling for its rescission.
- New proposed rule would strip work permits from asylum seekers seeking appellate review
- In newly proposed rule, DHS reaches a new level of cruelty. Targeting people with final orders of removal, DHS proposes to strip work authorization for 95% of individuals with final orders released on supervision; those individuals include asylum seekers, stateless individuals, and individuals seeking appellate review. These individuals often wait for years to reach a decision on their claims or for DHS to arrange for their removal.
- Status: Pending issuance of final rule. NIJC filed a comment denouncing its cruelty and opposing most changed proposed in this rule.
- Federal Court stops the systematic expulsions of children at the border (P.J.E.S. v. Wolf)
In March 2020, the Centers for Disease Control and Prevention (CDC) closed the U.S. border over the outcry of public health experts; such experts included high-ranking CDC officials, who were ultimately strong-armed by Vice-President Pence and Stephen Miller. Customs and Border Protection (CBP) proceeded to expel over 200,000 migrants and asylum seekers at the border, including over 13,000 children—some of whom were arbitrarily sent to Mexico despite having no roots or caregiver there.
Status: A federal court enjoined the expulsions of children in a class action suit led by an indigenous child seeking asylum. Unfortunately, adult asylum seekers and parents remain subject to the summary expulsions, in violation of U.S. and international law.
- Flouting hundreds of opposing comments, new final rule adds myriad new bars to asylum eligibility (Pangea Legal Services v. DHS)
DHS and the Executive Office for Immigration Review (EOIR) published a final rule adding many new bars to asylum eligibility, including any felony offense, nearly any drug-related offense, and even allegations of conduct never adjudicated by a criminal court. Additionally, the rule bars anyone convicted of unauthorized reentry from asylum eligibility—a perverse consequence given this administration’s regular punishment of asylum seekers through cruel prosecutions. NIJC condemned this cruel, final iteration. (See December 2019 for more information)
- Status: A federal judge temporarily halted the final rule, before its implementation in November. Organizations representing asylum seekers have sued and sought a preliminary injunction
- EOIR proposes rule to codify rushed and potentially biased hearings for asylum seekers
- EOIR, the agency within the Department of Justice that includes immigration courts, issued a proposed regulation that will severely curb due process for asylum seekers. The rule would bar asylum seekers who fail to file asylum applications within two weeks of their first hearing. Completing the laborious and scrutinized asylum application so quickly will be impossible for many asylum seekers who are without counsel, detained, traumatized, and without access to evidence they need. The regulation would also permit judges to minimize the evidence that asylum seekers submit in support of their claims, and add the judge’s own evidence packet—an unprecedented power that falls short of due process standards.
- Status: Pending final rule. Comments on this proposed regulation close on October 23, 2020. NIJC has filed comments in opposition to this rule and calling for its rescission.
- The U.S. Citizenship Immigration Services (USCIS) issues policy to strip asylum status years after granted protection
- USCIS has bolstered a policy to terminate asylum for asylees seeking permanent residency. Under a new provision of their policy manual, USCIS would place asylees and their spouse and children straight back into deportation proceedings. Even asylees who are permanent residents would not be immune, as they could be stripped of their status within five years of getting their green card.
- Status: USCIS’ asylum termination policy took immediate effect. Besides creating inefficiencies, this policy is also likely to chill asylees and their derivatives from seeking permanent status, out of fear that they will be stripped of the protection of asylum.
- EOIR proposes rule tampering with due process protections for appeals
- EOIR issued a proposed regulation making dramatic changes to the appeals process. The proposed rule would dramatically undermine asylum seekers’ access to appellate review of deportation orders, causing particular harm to those who cannot afford counsel. Among other things, the proposed rule would limit the extensions available to immigrants to prepare appellate briefs and remove the Board’s discretion to reopen cases when otherwise barred by time and numerical restrictions.
- Status: Pending final rule. Comments for this proposed regulation closed on September 25, 2020. NIJC submitted comments opposing this proposed rule, and calling for its withdrawal.
- Federal Judge finds that Customs and Border Protection (CBP) violated the law by conducting initial fear screenings
(A.B.-B. v. Morgan)
- By law, asylum seekers who arrive at the border are entitled initial fear screenings. By law, these screenings should be conducted by specialized asylum officers with training and expertise in asylum law. Nevertheless, the administration began the practice of having CBP officers conduct these screenings, denying asylum seekers at disproportionate rates. (See March 2020 update for more information.)
- Status: A federal judge blocked CBP from conducting further asylum screenings. While this is an important victory, the Centers for Disease Control and Prevention’s (CDC) border closure thwarts any return to lawful asylum processing.
- Class action suit challenges unlawful border expulsions (P.J.E.S. v. Wolf)
- Since March, the Trump administration has been exploiting the COVID-19 pandemic to expel nearly all noncitizens, including asylum seekers and thousands of children. These unlawful expulsions began in response to the CDC's order closing the Southern border. (See May 2020 update for more information.) Though mostly shrouded in secrecy, news broke that the government was confining children alone in hotels for weeks, without access to counsel or proper medical care.
- Status: An unaccompanied child filed a class action suit to challenge the legality of these expulsions, which contravene U.S. asylum law and trafficking protections for children. To date, CBP has used the CDC's order to unlawfully expel over 100,000 individuals at the Southern border, including over 2,000 children.
- Federal judge permits suit challenging bias in immigration court against asylum seekers to proceed (Las Americas v. Trump)
- In December 2019, nonprofit organizations representing asylum seekers sued in federal court to challenge the weaponization of the nation's immigration court system to serve the Trump administration's anti-immigrant agenda. Their complaint challenged the bias of the immigration court system, under control of Attorney General Barr; the existence of "asylum-free zones" where judges deny virtually all asylum claims; the financial incentives to deny cases more quickly; and the subjection of recently arrived families to expedited dockets, which curb their due process right to prepare for their asylum hearings and find an attorney.
- Status: Federal suit is ongoing. In August 2020, the federal court allowed the plaintiffs' claim to move forward, largely denying the Trump administration's motion to dismiss.
- New proposed rule seeks to codify public health ban on asylum seekers
- DHS and EOIR issued a proposed rule designed to exclude asylum seekers who flee from or travel through a country where infectious or highly contagious diseases are "prevalent," or exhibit symptoms "consistent with" such disease or illness. This new rule would consider such asylum seekers a "danger to the security" of the U.S. This rule is reminiscent of the now-indefinite border closure imposed by the CDC in contravention of decades of U.S. and international law. (See May 2020 update for more information.)
- Status: Comments are due on August 10, 2020. NIJC submitted comments opposing those proposed regulations, as they violate U.S. and international mandates not to turn away those who seek refuge from persecution, even during public health emergencies. 170 public health experts have unequivocally rejected DHS's and EOIR's reasoning.
- Trump's asylum Transit Ban ruled unlawful by two separate courts (Capital Area Immigrants' Rights Coalition v. Trump; East Bay Sanctuary Covenant v. Barr)
- In July, A D.C. federal judge vacated the Trump administration's asylum regulatory ban, which precludes anyone who had transited through a third country en route to the United States from gaining protection under asylum law. The judge ruled that the administration's rushed rationale for imposing such sweeping obstruction on asylum protection violated the Administrative Procedures Act (APA). In a separate ruling (East Bay Sanctuary Covenant v. Barr), the Ninth Circuit Court of Appeals also held that the rule violates the APA, as well as exceeds the bounds of asylum law. The court also found that the rule was likely to cause irreparable harm to asylum seekers, including children, warranting an injunction.
- Status: The transit ban is blocked at this time based on the D.C. court's ruling. A separate stay from the Supreme Court remains in effect with respect to East Bay. (See September 2019 update for more information.) Both these rulings show that the Trump administration has abused the regulatory process to try to change asylum law.
- Canadian Court finds Safe Third Country Agreement with U.S. unconstitutional because the U.S. violates asylum seekers' rights
- Under a Safe Third Country Agreement implemented in 2004, Canada may return many asylum seekers back to the U.S. if they arrive from the U.S. Due to the Trump administration's draconian and cruel policies, many asylum seekers have turned to Canada for relief, raising the number of individuals subject to this Agreement. Upon review of the consequences asylum seekers face in the U.S., the Federal Court of Canada ruled that the Safe Third Country Agreement with the United States is unconstitutional. In particular, the Court took issue with the U.S.'s punitive use of detention. As the Court explained, "Canada cannot turn a blind eye to the consequences...The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty."
- Status: The Canadian government has until January 22, 2021 to respond to this ruling, either via appeal or reconsideration of this Agreement. Human rights advocates, who brought this case along with asylum seekers, called for the Agreement to end immediately, in order to avert further human rights violations and subject more asylum seekers to the COVID-19 outbreak, rampant in U.S. detention.
- Court of Appeals restricts summary deportations of asylum seekers who flee domestic and gang violence (Grace v. Barr)
- In 2018, former Attorney General Jeff Sessions issued a precedential decision, Matter of A-B-, that dismantled asylum protections for domestic violence survivors and undermined the validity of claims based on gang violence. (See June 2018 update for more information.) DHS then applied A-B- to credible fear screenings, where officers decide whether asylum seekers will face immediate deportation or be permitted to present their asylum claims to a judge. Summary deportations ensued for countless domestic and gang violence survivors, and asylum seekers challenged their credible fear screenings as contradicting decades of domestic and international law. In December 2018, a D.C. federal judge enjoined DHS' use of A-B- to deny asylum seekers their day in court. DHS appealed.
- Status: The D.C. Court of Appeals vacated or limited DHS' credible fear policies implementing A-B-. The D.C. Circuit upheld the injunction on key aspects of A-B- that imposed unduly burdensome requirements on asylum seekers.
- Two precedential court decisions place asylum seekers at risk of detention and summary deportation nationwide, without due process
- The Trump administration expanded "expedited removal" away from the borders, allowing immigration agents to pick up any person anywhere in the country and deport them without judicial review unless the person can convince the immigration agent that they are a citizen, or that they have some lawful status in the United States. (See July 2019 update for more information.) This expansion was enjoined by a federal judge in September 2019. The government proceeded to appeal. Concurrently, the government also challenged an asylum seeker's right to seek habeas corpus review, a last resort judicial remedy to challenge the lawfulness of his expedited removal proceedings. NIJC filed an amicus brief arguing that access to habeas review is critical for asylum seekers.
- Status: A federal court of appeal lifted the injunction stopping the dramatic expansion of expedited removal, setting the stage for draconian implementation nationwide. A few days later, the U.S. Supreme Court eliminated habeas corpus review of expedited removal proceedings--tossing the last window for judicial review available to all noncitizens. The combined effect of these decisions will morph expedited removal into a nationwide rapid deportation program operating in the shadows.
- DHS publishes two final rules on work authorization, engineered to keep asylum seekers impoverished
- DHS published two highly contested regulations that will harm asylum seekers' ability to work while their cases are pending. One lifts a rule to process applications for work permits within 30 days of receipt--a measure previously tailored to the unique vulnerability of asylum seekers whose cases are frequently pending for years. A second rule erects even greater barriers. On the one hand this rule prevents asylum seekers who have filed asylum more than one year after entry or entered without inspection from gaining work authorization. On the other hand, it requires asylum seekers who are eligible to wait a full year before they can seek work authorization, all but ensuring irreparable harm while many fall prey to food and shelter insecurity.
- Status: A federal suit is currently pending, along with the plaintiffs' request for a preliminary injunction to stop these two rules from going into effect 60 days after publication--respectively by August 21 and August 25 2020. See November 2019 update for more information.
- New proposed rule guts few remaining asylum protections; flouts U.S. and international law and due process protections for asylum seekers
- DHS and EOIR issued a joint proposed rule that guts asylum law. Among other things, the rule would ensure that no women, LGBTQ individuals, or gang violence survivors can win asylum. The law dramatically expands findings of fraud or frivolous applications, short-circuits due process, and builds the pathway to rushed fear and torture screenings.
- Status: Pending final publication; comments were due on July 15, 2020. NIJC issued a categorical condemnation of this rule and submitted comments calling for rescission of this illegal rule. Opposition to this rule is overwhelming--more than 88,000 comments were submitted.
- Executive branch closes U.S. border indefinitely to asylum seekers under the guise of containing COVID-19
- In March, the CDC made the draconian and unprecedented decision to close the border—largely based on the false assumption that asylum seekers must be detained rather than paroled to shelter-in-place with their relatives. In May, the CDC extended its order with no end in sight. Since the CDC closed the border in March, Customs and Border Protection (CBP) began mass expulsions of over 150,000 migrants—including nearly 9,000 unaccompanied children. (See March & April 2020 updates for more information.)
- Status: The border remains closed to asylum seekers. The CDC's order drew strong condemnation from public health experts, who have found no public health justification to shut out asylum seekers.The human toll of this policy is devastating, including on children. In June, two children seeking asylum have brought a legal challenge to the legality of their expulsion.
- Trump administration continues unlawful expulsions of asylum seekers at the border for another month
- In March 2020, the CDC issued an interim final rule (IFR) using a 75-year-old quarantine law to close the border. Armed with the CDC's order, CBP expelled 90% of migrants in April, returning vulnerable adults and children straight back to the conditions they fled.
- Status: The border closure was extended for one month. NIJC submitted comments condemning the CDC's IFR and calling for its immediate rescission. Although the administration walled off asylum seekers long before COVID-19, this latest assault on the right to asylum is a blatant violation of U.S. and international law.
- Proposed rule seeks to raise fees in immigration court up to 800% and impose historic fee on asylum application
- EOIR, part of the Department of Justice (DOJ) proposed a rule to drastically raise fees on applications, motions, and appeals. For example, appeals, which currently cost $110, would cost $975 under the proposed EOIR rule. additionally, EOIR proposes to charge a $50 fee for asylum seekers—mirroring the proposed rule by the U.S. Citizenship Immigration Services (USCIS) seeking to impose their own fee on asylum applications. (See December 2019 update for more information.
- Status: Awaiting issuance of the final rule. The comment period for the proposed rule closed on March 30, 2020. NIJC strongly opposes this rule and the imposition of an unprecedented wealth tax on asylum claims.
- CBP interferes with asylum seekers' rights to fear-based screenings (A.B.-B. v. Morgan)
- When asylum seekers enter the U.S., they have the right to a credible or reasonable fear interview (CFI/RFI) with a trained asylum officer from USCIS. Applying the appropriate, non-adversarial standard in CFIs and RFIs is a matter of life-or-death, as asylum seekers can be summarily deported if they do not pass the CFI. In 2019, CBP entered into an agreement with USCIS to allow CBP officers to take over CFIs. Unlike USCIS asylum officers, CBP officers are purely trained in law enforcement and have a hostile track record toward asylum seekers. That is why federal laws and regulations require CBP officers to refer asylum seekers to USCIS asylum officers, not take their place.
- Status: On March 27, 2020, detained families sued the federal government to vacate the agreement between CBP and USCIS and restore USCIS' role in conducting fear-based interviews. This lawsuit also seeks a preliminary and permanent injunction to stop CBP's interference with asylum screenings altogether.
- Trump administration uses COVID-19 pandemic to further ban and detain asylum seekers
- The White House has submitted a $45.8 billion emergency supplemental funding request to Congress as the pandemic stretches federal agency funding thin. The request includes $567 million to fund, in part, up to nine “migrant quarantine facilities” along the border operated by CBP and $249 million, in part to convert ICE facilities to use for quarantine. The Trump administration also announced the closure of the U.S. border with Canada and Mexico. There is ample evidence that the pandemic bears no connection to migration from the U.S. Mexico border, while the U.S. and Canada’s numbers of viral infections far exceed those of their southern neighbors.
- Status: Congress has not agreed to fund ICE and CBP quarantine centers to date. However, the border remains closed to all migrants—including asylum seekers and children—in violation of U.S. and international law. NIJC strongly condemns the administration’s exploitation of a public health crisis to further detain and wall off asylum seekers and migrants. These proposals do not heed the advice of public health experts, and instead double down on anti-immigrant policies fueled by xenophobia. The continued and expansive use of detention of migrants and asylum seekers has become a public health hazard, in addition to the flagrant violations of U.S. law and international human rights protections.
- Board of Immigration Appeals (BIA) decision issues precedent against release of asylum seekers on bond (Matter of R-A-V-P-)
- For years now, the Trump administration has arbitrarily stopped releasing asylum seekers on humanitarian parole, leading to the indefinite detention of thousands across the country. Some asylum seekers have remained eligible to seek release on a monetary bond. To adjudicate bond requests, immigration judges assess whether the asylum seeker poses any danger to others or national security, or is likely to become a “flight risk”—i.e., fail to appear at subsequent hearings. On March 18, 2020, the Board of Immigration Appeals issued a precedential decision further restricting the opportunity for this already limited category of asylum seekers to seek bond, reasoning that those who do not have ties in the United States, are not currently employed, or may lose their asylum case pose a flight risk.
- Status: The decision is in place and operational and certain to justify the indefinite detention of countless asylum seekers.
- Court of Appeals reinstates order that protected class of asylum seekers unlawfully "turned back" following asylum transit ban (Al Otro Lado v. Wolf)
- Back in 2017, a class of asylum seekers sued the Trump administration challenging CBP's policy to “turn back” asylum seekers or expose them to metering. Under pretenses that the U.S. was at capacity, CBP routinely turned away asylum seekers in violation of U.S. and international law. In November 2019, a California federal court granted these asylum seekers provisional class certification and a preliminary injunction to protect their access to asylum if they transited through a third country. This injunction was necessary after the Trump administration issued an IFR barring all non-Mexican asylum seekers who transited through a third country from applying for asylum in the U.S. on or after July 16, 2019—but began applying this ban to the metered class of asylum seekers who had sought entry before July 16, 2019. In December 2019, the Trump administration appealed the district court’s ruling and successfully obtained an emergency stay of the injunction pending appellate review.
- Status: Preliminary injunction upheld on appeal. On March 5, 2020, the Ninth Circuit removed the emergency stay and reinstated the district court’s preliminary injunction, protecting “all non-Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019, because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” This ruling restored the right to seek asylum for the class of asylum seekers who were turned back or metered and barred from seeking asylum before July 16, 2019.
- Federal Court vacates administrative asylum directives from USCIS acting director because he was not lawfully appointed (L.M.-M. v. Cuccinelli)
- In September 2019, a number of asylum seekers detained with their families in Texas and the non-profit RAICES brought suit in federal court challenging USCIS directives that rushed asylum seekers through the credible fear evaluation process within a day of their arrival at the detention center. The directives left families no time to understand their rights and the procedures for those interviews or consult with an attorney and made it nearly impossible for asylum seekers to seek an extension to prepare for the interview or consult with counsel. The legal challenge to the validity of these directives is based on the claim that Acting USCIS Director Ken Cuccinelli was not lawfully appointed under the Federal Vacancies Reform Act and the Appointments Clause of the U.S. Constitution at the time he implemented the policies.
- Status: The directives have been vacated by a federal court, but their standing is unclear. On March 1, 2020, the federal court concluded that Cuccinelli was not lawfully appointed to serve as acting director and thus “lacked authority” to issue the asylum directives. The Court did not reach the other legal challenges. There are reports that USCIS staff is operating as though the directives are no longer in effect, but a potential legal challenge is likely forthcoming. Confusion about Cuccinelli’s role lives on.
- Migrant Protection Persecution Protocols (MPP) remains in full force despite recent litigation and short-lived relief granted by the 9th Circuit Court of Appeals (Wolf v. Innovation Impact Lab)
- A full year has passed since MPP (“Remain in Mexico”) was implemented and the human toll is staggering; approximately 60,000 Mexicans have been forced to remain in Mexico in life-threatening conditions while awaiting their court hearings. In April 2019, a federal district court enjoined MPP, finding it “lacks sufficient protections against [persons] being returned to places where they face undue risk to their lives or freedom.” This decision was stayed, however, pending the government’s appeal to the 9th Circuit Court of Appeals. Meanwhile, Doctors Without Borders issued a report that found 80% of migrants waiting in Nuevo Laredo under MPP to have been abducted by criminal networks and 45% to have suffered violence or violation.
- Status: MPP remains fully operational, with harms continuing unabated. In two decisions both issued on February 28, 2020, the Ninth Circuit removed and then reinstated the injunction against MPP. On March 11, 2020, the Supreme Court declined to lift the emergency stay and granted review of this case in October 2020.
- Trump Administration further expands new expedited deportation procedures and agreements to deter asylum seekers
- The Acting Commissioner for CBP testified before Congress in late February that DHS has: put more than 3,700 migrants through HARP and PACR, expedited deportation programs described in more detail below; and removed approximately 700 asylum seekers to Guatemala under the existing Asylum Cooperative Agreement, also described below. Ongoing reports reveal the massively harmful impact that these programs are unleashing on refugees at the southern border. Asylum seekers forcibly sent to Guatemala under the “asylum cooperative agreements” (ACA) endure squalid conditions that deter many from seeking protection; 75% of the asylum seekers (all of whom are Hondurans and Salvadorans) are women and children. Guatemala’s asylum infrastructure is ill-equipped to process the volume of requests it receives, and many asylum seekers fear that they will meet the same persecution they fled from their home country.
- Status: These programs are fully operational. The legal challenges to PACR/HARP (by the ACLU) and to the ACA (by NIJC and other organizations) are ongoing.The Trump administration extols the “successes” of these programs and seeks their expansion, reporting that they have effectively walled off 95% of asylum seekers who seek lawful entry to the U.S.
- CBP begins expanding two new programs to the Rio Grande Valley – cutting off asylum seekers from accessing legal counsel and rushing them through the credible fear process
- Two new programs – the Prompt Asylum Claim Review (PACR), applying to individuals other than Mexico, and the Humanitarian Asylum Review Process (HARP), applying to Mexican nationals – were initially launched in the El Paso area in October 2019. Under the PACR and HARP programs, asylum seekers remain in CBP custody rather than being transferred to Immigration & Custody Enforcement (ICE) for their credible fear processing (the threshold interviews for determining asylum eligibility). PACR and HARP result in asylum seekers being unjustly rushed through the credible fear process and ultimately sent back to dangerous situations. Additionally, asylum seekers are effectively precluded from receiving meaningful help and support from counsel or loved ones due to limited access to phone calls. Preliminary rates of CFI passage in these programs are appallingly low because of the due process challenges.
- Status: These programs are fully operational. In December 2019, the ACLU filed a federallawsuit in the U.S. District Court for the District of Columbia, challenging, among other things, the legality of the PACR and HARP programs. See February 2020 for more recent status updates.
- USCIS published a proposed rule increasing fees, eliminating most fee waivers, and imposing an unprecedented fee for asylum seekers
- Besides seeking drastic increases that will disproportionately harm indigent and low-income immigrants, USCIS proposed the introduction, for the first time ever, of fees for affirmative asylum filings and for initial work authorization for asylum seekers. This rule requires asylum seekers to pay a fee for their asylum application and work authorization. Among the 147 state parties to the 1951 Convention Relating to the Status of Refugees, only three others charge a fee for asylum applications. Any fees imposed on asylum seekers who first arrive may create an insurmountable barrier and deter countless individuals with bona fide claims.
- Status: Pending issuance of the final rule. NIJC submitted comments strongly opposing the proposed fees, calling for rescission of the proposed rule.
- DHS and the DOJ publish a proposed rule severely curbing the number of individuals who may qualify for asylum
- This joint proposed rule adds seven new bars to asylum eligibility based on prior conduct or involvement in the criminal legal system, and significantly alters the way immigration adjudicators determine whether allegations of wrongful or criminal conduct render an individual ineligible for asylum. The proposed rule will severely impact asylum seekers and threatens U.S. compliance with its obligations under international and domestic asylum law.
- Status: Final rule issued. NIJC opposed this rule during the comment period and condemned this latest cruelty upon its final publication. (See October 2020 update for more information)
- DHS and DOJ issue IFR effective immediately, that allows the U.S. to enter into unsafe third country agreements with Honduras, El Salvador, and Guatemala (U.T. v. Barr)
- Under this agreements, known as ACAs, individuals would be prohibited 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: This policy is in effect but litigation is pending. On January 15, 2020, NIJC and several other organizations filed a federal lawsuit challenging the legality of the so-called "safe-third-country" agreements. The lawsuit U.T. v. Barr, was filed in the U.S. District Court of Washington, D.C. and cites violations of the Refugee Act, Immigration and Nationality Act, and APA. Plaintiffs are asylum seekers who fled to the U.S. and were unlawfully removed to Guatemala, as well as organizations that serve asylum seekers. See February 2020 for more recent status updates
- DHS proposes rule to double wait time for or block asylum seekers seeking work authorization 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 days; 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: Awaiting issuance of final rule. The comment period for the proposed rule closed on January 13, 2020.
- USCIS publishes a proposed rule that would eliminate the 30-day processing time for work permits 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: Pending issuance of the final rule. NIJC submitted comments opposing this proposed rule on November 8, 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 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 MPP policy. This will only exacerbate the violence and danger asylum seekers stuck in Mexico currently face.
- Status: The timing and/or details of this new policy are unclear.
- 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 IFR 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.This case remains pending a final decision by the Ninth Circuit.
- All undocumented immigrants in the interior become targets for arrests and deportation through new IFR expanding procedures that expedite deportation
- Pursuant to another major regulatory change implemented as an IFR, 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.
- Status: Because of its issuance as an IFR, the expansion of expedited removal is already in place. A lawsuit challenging this inhumane rule was filed on August 6, 2019. See June 2020 for updates.
- 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.
- 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.
- MPP a.k.a. "Remain in Mexico"
- The MPP program constituted a dramatic undermining of the foundation of the U.S. asylum system by systematically returning asylum seekers who have been inspected at a port of entry and put into removal proceedings to Mexico to await their proceedings. Since its inception, the program has been implemented at ports of entry all across the southern border, placing asylum seekers at risk for violence, exploitation at the hands of cartels, and death. Approximately one percent of people returned to Mexico under the program are able to find representation in their court cases and the program regularly results in family separations.
- Status: This policy is in effect and continues to cause massive harms and rights abuses. Human Rights First partners with other human rights organizations to publish a running database of publicly reported kidnappings and violent assaults on asylum seekers forced to return to Mexico through this program. The program has additionally caused wait times on the international bridges to increase and asylum seekers to become so desperate that they cross between ports of entry and suffer injuries or even death. A lawsuit challenging the policy is on-going (Innovation Law Lab v. Nielsen); although the district court issued a preliminary injunction in April 2019 the program continues to be operational. See February 2020 for more recent status updates.
- Asylum Ban 1.0 (barring migrants who cross between ports from asylum eligibility)
- In response to groups of asylum seekers from Central America arriving in the fall of 2018 (known colloquially as caravans), the administration, via proclamation, banned individuals who do not present themselves at a point of entry from applying for asylum. The proclamation was implemented through an IFR, allowing for immediate implementation without the ordinary notice and comment period usually required for significant regulatory changes. The ban imposes an abitrary geographic restriction on individuals who are fleeing for their lives.
- Status: Enjoined; not operational pending ongoing litigation on two fronts. (1) in O-A v. Trump, a Washington, D.C. federal court declared the rule illegal and prohibited its implementation. On September 30, 2019, the U.S. Government appealed the D.C. federal court's decision. No decision has been issued on the appeal. The D.C. federal court's decision remains in effect during the pendency of this appeal. (2) In East Bay Sanctuary Covenant v. Trump, North California federal court imposed a restraining order on the rule. The government immediately appealed and sought an emergency stay before the federal district court, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court—all of whom denied the government's request and left the restraining order in place until the Ninth Circuit reviewed the merits of the district court's decision. On February 28, 2020, the Ninth Circuit's Federal Court of Appeal also ruled in East Bay Sanctuary Covenant v. Trump that the rule is unlawful. 
- 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 but is not yet in effect subject to pending litigation.
- 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. See March 2020 for more recent status updates.
- 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.
- 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, 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
- The administration intended the information sharing agreement to provide ICE with the information it needed to target, arrest, and deport family members attempting to reunite with children entering the United States unaccompanied. ICE arrested more than 300 potential sponsors from the date of the agreement until an appropriations bill prohibiting most arrests of sponsors was signed into law.
- Status: The agreement is still in place, as is the provision in appropriations law prohibiting enforcement against most sponsors. Although ORR has made some modifications in the implementation of this agreement, the fear it instilled in immigration communities remains; with many family members too afraid to come forward as sponsors, children remain in ORR custody for prolonged periods. Children enduring prolonged detention face numerous barriers to presenting asylum or other claims to relief from removal.
- 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.
- 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.
- 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.
- 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.
Last updated: November 2020