Explainer: Details on the Trump Administration’s Final Efforts to Destroy Asylum | The Center for Victims of Torture

Explainer: Details on the Trump Administration’s Final Efforts to Destroy Asylum

Thursday, January 7, 2021

Andrea Cárcamo is CVT senior policy counsel.

As the Electoral College officially affirmed President-elect Joe Biden’s victory, the Trump administration has been making a last sprint to decimate access to asylum. In the past few weeks the administration published several final rules, four of which will be particularly harmful to individuals fleeing from persecution and torture.

A Biden/Harris administration can still reverse these rules, but because they are final, the administration would have to go through the rulemaking process to do so, which will likely take at least several months. 

At the same time, the implementation of these rules can be halted through litigation, so stay tuned as we continue to follow relevant cases and flag any new developments. 

Here is a summary of the four most harmful new rules:

1. THE “DEATH TO ASYLUM” RULE

Torture Rehabilitation Programs’ Comment on the Rule

Agencies: Department of Homeland Security (DHS) and Department of Justice (DOJ)
Publication: Published as final rule on December 11, 2020.
Effective date: January 10, 2021 (see update, below)
Litigation: there are at least three lawsuits in the works.
UPDATE: This rule was BLOCKED in court as of Jan. 8 and was not implemented on Jan. 10.

The rule does the following:

  • Makes it harder to pass the initial “credible fear” screening (CFI) by:
    • Raising the standard of proof.
    • Adding bars to asylum that are considered during this process.
  • Restricts individuals who pass the CFI to only be able to apply for asylum and related forms of relief (i.e. cannot apply for other types of relief even if they qualify).
  • Allows immigration judges to deny asylum without a hearing if they determine that the applicant failed to establish a claim on first impression (prima facie).
  • Narrows the definition of key elements required to obtain asylum, thereby narrowing the pool of individuals who would qualify for asylum. These changes are particularly targeted to claims usually made by individuals from Central America.  
  • Bars from asylum individuals who traveled through more than one country to get to the U.S.
  • Restricts eligibility for protection for survivors of torture seeking relief under the Convention against Torture.  

For a technical summary, you can access the EOIR (DOJ) Guidance document.  

2. THE RULE ON 15-DAY FILING DEADLINE AND MORE

CVT’s Comment on the Rule

Agency: DOJ – Executive Office for Immigration Review
Publication: Published as a final rule on December 16, 2020.
Effective date: January 15, 2021 (see update, below)
Litigation: likely to be litigated. 
UPDATE: This rule was halted by a Temporary Restraining Order as of Jan. 15 and did not take effect.

The rule does the following:

  • Establishes an initial 15-day filing deadline for submission. The countdown starts on the day of the first hearing before the asylum seeker must go before an immigration judge.
    • The deadline can be extended for good cause shown.
    • If the applicant does not file by deadline, then the opportunity to file will be deemed waived.
    • If an applicant files an application by the deadline, but it is not appropriately filed , the immigration judge shall deem the opportunity to file such an application waived.
  • Establishes additional requirements for an asylum application to be considered appropriately filed.
    • The application must be filled out exactly as indicated in the instructions, (i.e. cannot leave any blank spaces, and other technicalities).
    • The application will no longer deemed complete if the immigration court fails to return it within 30 days.
  • Dictates the type of evidence immigration judges are allowed to consider.
  • Allows immigration judges to submit evidence into the record.
  • Requires the immigration judge to finalize an asylum claim within 180 days. This time period can only be extended if the applicant shows “exceptional circumstances,” a higher standard than the one currently used to continue a case.

3. THE TRANSIT BAN RULE

CVT’s Comment on the Rule

Agencies: DOJ and DHS 
Publication: Published as final rule on December 17, 2020
Effective date: January 16, 2021 (see update, below)
Litigation:  Groups are working on a strategy to challenge this rule, given an injunction on the initial issuance of the same rule previously but as an Interim Final Rule.
UPDATE: The transit ban rule was enjoined effective Feb. 16, 2021. 

The rule does the following:

  • Adds a new mandatory bar to asylum for anyone who “enters or attempts to enter the United States across the southern land border after transition through at least one country” from which the asylum seeker is not a national (i.e. bars all but Mexican asylum seekers).
  • Exceptions include:
    • Individuals seeking protection who show they applied for protection in at least one country through which they transited.
    • Individuals who meet the definition of “victim of a severe form of trafficking in persons.”
    • If transited through countries that were not parties to the 1951 Convention on the Status of Refugees.
  • Individuals could still qualify for withholding of removal or protection under the Convention against Torture.

4. BAR TO ASYLUM BASED ON NATIONAL SECURITY

CVT Comment on the Rule

Agencies: DOJ and DHS
Publication: Published as final rule on December 23, 2020
Effective date: January 22, 2021 (see update, below)
Litigation:  None yet filed but challenges are being discussed now.
UPDATE: As of Jan. 21, the effective date has been changed to March 21, 2021.

The rule does the following:

  • Creates a bar to asylum, on national security grounds, based on suspicion that the applicant is carrying an infectious disease, such as COVID-19.
  • If it is determined that asylum seekers do not qualify for either asylum or withholding of removal based on national security grounds, the rule would establish a screening for protection under the Convention against Torture at the credible fear screening stage
  • If asylum seekers establish at the CFI stage that they are more likely than not – a higher threshold than that required to obtain asylum – to be tortured if returned to their country of removal, the rule would allow DHS to use its discretion to either place asylum seekers in proceedings in the U.S., or remove them to a third country

 

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