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Proposed Changes to Asylum Rule from Trump Administration

July 1, 2020

On June 11, 2020, the Trump administration proposed sweeping regulations, which, if enacted, would completely overhaul the asylum process. The comment period is set to end on July 15, 2020, after which point, the administration would need to consider the comments in preparing the final rule, which could be published as early as this fall. The administration states that the purpose of the new rule is to “more effectively separate baseless claims from meritorious ones,” but in reality, the proposed rule would essentially gut the asylum system in the United States.

In a departure from previous policy from this administration, this rule would affect anyone seeking asylum, regardless of how the individual entered the country. Previous attempts to partially ban asylum have focused on those who enter by crossing the Southern Border, but this would affect everyone, including those who enter lawfully using a nonimmigrant visa.

The proposed rule instructs Asylum Officers and Immigration Judges to deny asylum to those who have passed through at least two countries prior to arriving in the United States or those who have stayed in another country for at least 14 days prior to arriving in the United States, which would bar the majority of those who request asylum at the Southern Border, having had to cross through multiple countries to get to the United States.

The proposed rule would also seek to deny asylum to those who have been unlawfully present in the United States for at least one year prior to applying, with no exceptions.  Current asylum law states that an individual must request asylum within one year of arriving in the United States, with notable exceptions, including changed circumstances (either in the individual’s home country or in their personal circumstances) that would cause the individual to be afraid of returning to their home country more than a year after arriving in the United States, or extraordinary circumstances, such as lengthy hospitalization or ineffective assistance of counsel. The new regulations would allow for no such exceptions to the one-year filing deadline, which Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council, calls “patently illegal,” as Congress has specifically carved out such exceptions.

In addition, Asylum Officers and Immigration Judges are instructed to consider an unlawful entry a “significant adverse factor,” despite the fact that an individual may only request asylum from inside the United States. For most who seek asylum at the border or who cross the border unlawfully, obtaining a visa in their home country to enter the United States lawfully is often extremely difficult, if not impossible.

The proposed rule would additionally:

• Instruct Asylum Officers and Immigration Judges to consider the following as negative factors (in addition to an unlawful entry): failure to file taxes in the United States; working without authorization; or using fraudulent travel documents. Note that in addition to this proposed rule, USCIS announced that, effective August 25, 2020, they will extend the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days, unduly burdening asylum applicants.

• Enable Asylum Officers to make a finding that an asylum application is “frivolous,” which is currently only reserved for Immigration Judges and the Board of Immigration Appeals. The proposed rule also seeks to expand the definition of “frivolous,” which currently only applies to asylum claims that contain deliberately fabricated material evidence, to include cases that are meritless, a much more subjective standard. If an individual’s asylum application is found to be frivolous, they are barred from obtaining any U.S. immigration benefit for life.

• Redefine “persecution” as “an extreme concept of a severe level of harm,” which would not include instances of harm that arise “generally out of civil, criminal, or military strife in a country,” treatment that the United States generally considers “unfair, offensive, unjust, or even unlawful or unconstitutional,” nor “intermittent harassment, including brief detentions.”

• Seek to define “particular social group” and “political opinion,” to exclude those seeking asylum based on their fear of gang violence, gang recruitment, domestic violence, and on account of gender (to include claims based on membership in the LGBTQ community).

American Immigration Lawyers Association Executive Director Benjamin Johnson stated, “This rule would not leave us with an asylum process in anything but name, gutting any notion of asylum that still remains. These changes will result in legitimate asylum seekers who are fleeing racial, religious, political and gender persecution being forcibly returned to face assault, torture, and death.”

To comment on the proposed asylum rule, please click here.

If you have questions and wish to speak with one of our attorneys, please contact us to set up a consultation.

TAGS: Asylum, Trump