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Week 36: Administration unveils new set of proposed regulations gutting asylum, other protections
Immigration news, in context.
This is the thirty-sixth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we break down the Trump administration’s massive proposed rule on asylum.
In Under the Radar, we discuss the state of play at USCIS, which may soon furlough employees.
In Next Destination, we examine the first lawsuit against the administration’s Covid-related border shutdown.
The Big Picture
The news: The Trump administration just unveiled a lengthy proposed rule that would make drastic changes to the processes for people seeking humanitarian protections.
First things first: this proposed rule is just that, a proposal. It is set to be published in the Federal Register on Monday, at which point it’ll go to a 30-day public comment period, after which it could be shifted as the government undertakes its legal responsibility to evaluate the comments.
Obviously, the administration’s targeting of asylum isn’t new, and in fact has been one of its hallmarks, with successive and interlocking policies — the transit bar, MPP, asylum cooperative agreements, changes in adjudicative structure, and many more — slowly tightening the vise until the protections have become practically inaccessible. The latest, the CDC border closure purportedly ordered in response to the coronavirus pandemic, has now made it nearly impossible for anyone arriving by land to even begin the process of petitioning for asylum, regardless of their personal circumstances.
Yet it’s still fair to say this newest proposal is stunningly expansive, something that’s been in the works for a long time specifically in order to plug the few holes that had remained in the nigh-impenetrable barrier to humanitarian protections that the government has already spent so much time and energy crafting, litigating, and enforcing.
As others, including Migration Policy Institute analyst Sarah Pierce, have pointed out, it’s as if the administration had taken note of the few circumstances in which people were still finding ways to circumvent the brutal obstacles standing in the way of asylum, withholding, and CAT, and worked to surgically destroy these remaining paths, one by one, all done simultaneously in one fell swoop.
The regulations are proposed simultaneously for the Departments of Justice and Homeland Security, meaning that they would apply to all applications, whether affirmatively tendered or as a result of immigration court proceedings. (Affirmative applications are filed by people already in the U.S. People in deportation proceedings, many of whom are recent arrivals at the border, file “defensive” applications.) It’s also notable that many of the proposed policies are merely clarifying and codifying in regulation policies that had already been instituted internally by both departments, for example via precedential decision-making in the immigration courts.
The proposed regulation is 161 pages long and is excruciatingly detailed, seeming to predict potential claims and actively preempt them. We won’t go into every last stipulation, but fundamentally there are two types proposed changes to the asylum system: procedural shifts to the process itself, and additional draconian requirements for migrants to qualify and win cases.
Procedurally, the regulations would allow noncitizens in expedited removal proceedings — which is the vast majority of those seeking asylum or other protections — eligible only for limited proceedings known as “asylum-and-withholding-only,” which are less robust than the standard removal proceedings, if they established a credible or reasonable fear of persecution or torture. It would also mandate immigration judges to consider all legal precedent when reviewing a negative fear finding, instead of merely assessing the applicants’ credibility.
A judge would be given the power to signal an intent to deny applications based on just the application form and attached evidence, without the typical merits hearing. At that point the applicant would have ten days to respond before their case was denied (they could still appeal to the Board of Immigration Appeals, the immigration courts’ appellate division).
For the first time, asylum officers would be able to determine that asylum applications were “frivolous,” a legal designation that can have severe consequences, including the inability to ever seek an immigration benefit in the United States again. An immigration judge would have to affirm the finding to trigger all these consequences. The definition of a frivolous claim would also be expanded to a bizarrely self-referential standard of applications “without merit or substance.” Therefore, the proposal is simultaneously heavily tightening the standard by which applications are meritorious, and deeming those whose applications fall short of this nearly impossible standard to be filing frivolous applications that will bar them from any future chance at immigration, even if the rules subsequently change.
The regulations would also heavily limit both who could even apply for protections, and their ability to win if they were ultimately allowed to apply. Generally, they would significantly limit access to asylum for migrants who spent 14 days or more in any other country with an asylum system prior to their arrival in the United States; did not seek asylum in another country; transited through more than one other country; unlawfully entered or attempted to unlawfully enter the U.S. unless escaping immediate persecution or torture in a contiguous country; could have potentially lawfully resided in any other country through which they transited; or used any false documents in their attempt to enter the U.S.
For those who had already arrived in the United States, a failure to timely file taxes or declare every bit of income; a criminal record, even if it was expunged or vacated for a reason not related to a procedural defect; two or more asylum denials previously; and a cumulative year of unlawful presence in the country, among others, would be heavily weighted discretionary factors against asylum eligibility.
Provided someone was able to actually pursue a humanitarian protection claim, there would be Kafkaesque requirements. Some quick background: for the purposes of asylum, people must demonstrate that they are not only at risk of persecution and violence, but are specifically in danger as a result of their race, religion, nationality, political opinions, and/or membership in a “particular social group” (PSG). Given the narrowness of the first four, many asylum claims are brought under the PSG category.
Following on the footsteps of the Trump administration attorneys general, the proposal would essentially more tightly redefine all the main components of such a claim:
what constitutes persecution, which will no longer include things like “repeated threats with no actions taken to carry out the threats” and “government laws or policies that are infrequently enforced”
what constitutes a PSG, which would specifically exclude “the attempted recruitment of the applicant by criminal, terrorist, or persecutory groups,” “private criminal acts of which governmental authorities were unaware or uninvolved,” and “status as an alien returning from the United States,” among others
and what applicants could use to prove a so-called nexus linking their persecution to one of the protected classes, which could no longer include things like “personal animus or retribution,” “resistance to recruitment or coercion by guerilla, criminal, gang, terrorist, or other nonstate organizations,” and gender.
It would also redefine political opinion as something that has to be acted upon against a state entity, not a nonstate actor or a general culture, meaning retribution as a result of political organizing against, say, a gang, would not be considered to trigger persecution based on political opinion.
A few of the proposals relate specifically to protections against torture, which is a different process than asylum and is meant to provide relief to people who are specifically at risk of torture if deported. The most significant is that torture inflicted by a public official who is not torture for the purposes of the proceeding if the official is not doing it under “color of law,” a ridiculous standard that would put the onus on the applicant to prove that if they were being tortured by, say, a soldier, that such torture was officially sanctioned. Generally speaking, standards of evidence to begin a withholding or Convention Against Torture (CAT) process would also be raised.
It’s also worth noting certain parts of the regulations seem to skirt pretty close to being unlawful; for example, the adverse consideration of asylum applications after one year of unlawful presence, which runs counter to the asylum statute itself (the one-year limit is present in the law, but superseded by a provision allowing for “changed circumstances.”) Broadly, the regulation signals an intent by the administration to wholly disentangle itself from existing asylum, withholding of removal, and CAT precedent, shedding the goal of changing the system in favor of simply rewriting it unilaterally in a way that will effectively close the door on those protections for almost everyone.
How we got here
The Trump administration has been waging a nonstop war on asylum seekers for three and a half years. This proposal is the culmination of these efforts, an attempt to push through even more changes ahead of the 2020 presidential election. The regulation isn’t just a political ploy — it’s an attempt to codify the exclusionary vision of restrictionists like White House adviser Stephen Miller. (Chad Mizelle, the acting general counsel for DHS, is Miller’s protege, according to New Yorker staff writer Jonathan Blitzer.)
As we detailed above, the administration has already implemented a series of policies intended to gut asylum: Remain in Mexico, the third-country transit bar, so-called “asylum cooperative agreements” with Central American countries, metering at the border, indefinite detention in ICE facilities, and more. Together, these policies create “multiple unsolvable dilemmas to impact [migrants’] calculus for choosing to make the arduous journey to begin with,” as one National Security Council official put it. Still, there are people who — in the administration’s view — slip through the cracks and manage to eke out victories anyway. The proposed regulation seeks to eliminate that possibility altogether by creating even more unsolvable dilemmas.
It’s impossible to make sense of these proposals without first understanding the administration’s view of asylum seekers. Members of the administration have repeatedly claimed that asylum seekers file “fraudulent or meritless claims” and disappear into the interior after being released from detention.This is patently false. Government data analyzed by the American Immigration Council show that 83% of all immigrants in deportation proceedings from 2008 to 2019 showed up to their hearings; that figure was even higher for those represented by a lawyer. Still, the administration maintains that asylum seekers are attempting to game the system.
“Frivolous asylum applications,” the proposal reads, “are a costly detriment, resulting in wasted resources and increased processing times for an already overloaded system.” In the past, administration officials have insinuated that all failed asylum bids are “frivolous.” That is, if someone unsuccessfully applies for protections in the U.S. and doesn’t to win their case — whether it’s because they don’t have a lawyer, are being persecuted on non-applicable grounds, or are barred from asylum because of the aforementioned policies — then their claim has no merit in the administration’s eyes.
In 2019, for example, then-acting DHS secretary Kevin McAleenan told Congress that the “low credible fear threshold” incentivized fraudulent claims. McAleenan pointed to the disparity between the rate of migrants who pass their initial asylum screenings (around 90%) and those who are ultimately granted protections (a much lower average figure that varies across jurisdictions and judges) as proof that most asylum seekers don’t deserve protections. The proposal seeks to truncate the lengthy asylum process by letting judges end asylum applications before the hearing stage, a policy that would eliminate migrants’ due process rights which, notably, was proposed by the Heritage Foundation in 2019.
The regulation would also narrow the grounds on which migrants can apply for protection in the U.S., a process that is already underway. The administration has already tried to limit the scope of PSG. In 2018, then-Attorney General Jeff Sessions issued Matter of A-B-, a decision that effectively said victims of gang violence and domestic abuse don’t qualify as a particular social group but are instead victims of generalized violence, even in countries where authorities are unable or unwilling to protect them. A subsequent decision, Matter of L-E-A, decreed that migrants couldn’t qualify for persecution related to their family membership unless they were members of a notable or well-known family.
“The prototypical refugee flees her home country because the government has persecuted her,” Sessions wrote in his Matter of A-B- ruling. That single sentence reveals a lot about how the administration views — or claims to view — asylum protections. U.S. asylum and refugee law was established after World War II with a specific vision: to take in victims of government persecution, particularly from the USSR and countries affiliated with it. Asylum had a dual purpose. It would not only protect people abroad from persecution but would also establish the U.S. as a beacon of anti-communist freedom. Global matters have, of course, changed a lot since the postwar period, and many asylum seekers today aren’t necessarily fleeing government persecution. Instead, many are attempting to escape threats from non-governmental actors such as gangs, guerrillas, and armed separatist groups. They seek asylum not because the government is harming them — though sometimes officials do have a hand in their persecution — but because the government can’t or won’t protect them from harm.
Most asylum seekers are also people of color. Many are Central American — and often indigenous — and an ever-growing number are from Africa and Asia. Due to visa restrictions, most of these asylum seekers are unable to travel to the U.S. directly and, as a result, have to pass through several countries on their way to the United States. Guatemalans, for example, typically traverse through Mexico. Migrants from African countries often take a long, complex route to the U.S. that involves flying into Ecuador, traveling up to Colombia, crossing the Panama Canal, and walking or taking buses up Central America.
The restrictionist wing of the White House, which has ties to white nationalist groups, undoubtedly sees the presence of non-white migrants as a threat. Yet another section of the regulation would prevent these migrants’ ability to seek asylum in the U.S. by barring protections for anyone who spent more than 14 days in another country and didn’t seek asylum there. Given that the journey through the Darién Gap — often made on foot — takes at least a week, this would effectively end asylum for so-called “extra-continental” migrants who hail from countries outside North America. That is, of course, the point. The Center for Immigration Studies, a prominent restriction group with ties to the White House, has accused extra-continental migrants of posing a threat to national security and has implored the administration to subject them to the Remain in Mexico policy, which initially only applied to migrants from Spanish-speaking countries. It seems like Miller and his allies heeded their call.
As we mentioned, there will be a 30-day comment period following the official publication of the proposed rules on Monday. After that, it can take a couple of months for the administration to fulfill its obligation to address the questions raised by public comments before finalizing the regulation. It’s unlikely that much will change between the draft and the final versions. As opposed to the slapdash nature of some of the administration’s other immigration policy rollouts, a lot of thought has clearly been put into these regulations. The administration is probably already aware of all of the legal, practical, and moral concerns that will be raised.
As things stand, many of the stipulations were already part of the asylum adjudication system anyway. For example, migrants were already barred from seeking asylum if they had transited through a third country without seeking asylum there first. The double-layering could serve a few purposes; primarily, it may insulate the administration against some of the legal challenges claiming that such policies were capricious, in the sense that it could now point to having undertaken the full regulatory process to put them into effect.
Already, asylum was largely inaccessible; if they were to go into effect, it is genuinely difficult to imagine practically any person on earth fulfilling all the criteria necessary to, first, be permitted to tender an asylum claim at all, fight it successfully, and win protections. These regulations now also take aim at the remaining processes of withholding and CAT.
If the rule ever went into effect, there would undoubtedly be legal challenges, and that’s probably something the administration is fully expecting. If the administration ever had any reticence about putting out regulations that were massive litigation targets, that reticence is long gone, and getting sued has become a baked-in part of the immigration policymaking exercise.
Under the Radar
USCIS leaves prospective green card holders and citizens in limbo
U.S. Citizenship and Immigration Services, the DHS agency that handles applications for visas, green cards, and asylum, is on the verge of financial collapse. The agency is gearing up to furlough 15,000 employees — about three-quarters of its total workforce — starting on June 19, Government Executive reports. As we explained a few weeks ago, USCIS’s financial woes are largely self-imposed. The agency is almost entirely fee-funded, and the Trump administration’s efforts to slow down legal immigration have sped up its impending shortfall.
New reporting by BuzzFeed News’ Hamed Aleaziz reveals that earlier this year, an internal USCIS guidance said that Trump’s order suspending immigrant visas — which the president incorrectly framed as an “immigration ban” — would put green card applications filed by people already in the U.S. on hold. USCIS told Aleaziz that the guidance was “incorrect information” that has since been removed from the agency’s internal website. “The dates in the post and the reference to the executive order were incorrect.”
Meanwhile, two green card holders filed a lawsuit demanding that USCIS reinstate their naturalization ceremonies so they can register to vote before the presidential election in November. The pandemic has led to the indefinite postponement of a number of in-person immigration services, including naturalization ceremonies. Even as some states begin to reopen, citizenship ceremonies are less common — and less crowded — than they were in the past. CQ Roll Call reports that around 2,000 new citizens were naturalized last week, a much lower figure than was common in pre-pandemic times.
Advocacy organizations sue Trump administration over Covid-related border shutdown
A trio of immigrants’ rights groups filed a lawsuit this week against the Centers for Disease Control and Prevention’s effective shutdown of the U.S.-Mexico border — and of the asylum process. Border officers have “expelled” more than 20,000 migrants into Mexico since March under the order. According to government data reviewed by the El Paso Times, that figure includes 2,175 unaccompanied minors. Under normal circumstances, migrant children who travel to the U.S. alone are supposed to be granted special protections under the Trafficking Victims Protection Reauthorization Act (TVPRA). The CDC order, however, has gutted these protections.
The lawsuit, the first legal challenge over the CDC order, was filed on behalf of a 16-year-old boy from Honduras who has been in the custody of Customs and Border Protection for more than a week. (Under normal circumstances, migrants are supposed to be transferred out of CBP facilities after a maximum 72-hour waiting period, a rule the agency has broken in the past.) On Tuesday, a federal judge temporarily blocked the boy’s deportation, citing the pending litigation. If successful, the lawsuit could prevent the administration from expelling migrant children despite the CDC order, even if the border remains otherwise closed to unauthorized migrants.