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Trump Administration’s Proposed Regulation Restricting Asylum

By Carlos Sanchez

Carlos Sanchez is an associate attorney at ILOHB who works in the Removal Defense Department. Prior to joining ILOHB, Carlos was a fellow at the ACLU of San Diego where he worked on constitutional protections for noncitizens in the immigration system. He completed his bachelor’s degree at University of California, Berkeley and received his Juris Doctorate degree from University of California, Irvine.

The Department of Justice Executive Office of Immigration Review proposed numerous sweeping changes to the entire immigration system through informal notice and comment rule-making under the Administrative Procedures Act. The proposed rule makes it more difficult for asylum seekers at the border to have their cases heard by a judge, more difficult to be successful before a judge, and deters the filing of meritorious asylum claims. While the proposed rules will almost certainly be subject to challenge by immigration advocates, it is important to know the general contours of what the administration is proposing. Below is a summary of the proposed changes:

Credible Fear Screening Changes

  • Asylum seekers found to have a credible fear of persecution will now be referred to special “asylum-and-witholding-only” proceedings, instead of removal proceedings.
  • Immigration judges reviewing negative credible fear determinations must consider legal precedent instead of evaluating the individualized determination made below them.
  • Raises the credible fear standard from a “significant possibility” to “reasonable possibility” that the noncitizen will be persecuted.
  • Officers must consider internal relocation and mandatory bars during the screening process.

Applications for Asylum and Withholding of Removal

  • An application for asylum is frivolous if the noncitizen is aware of a high probability that his or her application was frivolous and deliberately avoided learning otherwise.
  • An application is also now frivolous if the noncitizen knowingly filed an application without regard to the merits of the claim.
  • An immigration judge may deny an application for asylum without a hearing if the judge finds it does not establish a prima facie claim.

Standards for Asylum and Withholding of Removal

  • a “particular social group” must be (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct in the society in question.
  • Non-exhaustive list of categories that cannot form particular social groups.
  • A “political opinion” must be an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state. 
  • A “political opinion” generally cannot be defined by generalized disapproval of non-state organizations.
  • “persecution” is defined as an extreme concept of a severe level of harm.
  • “persecution” does not include harm that arises generally from civil, criminal, or military strife.
  • Non-exhaustive list of categories that cannot form a nexus to a protected ground, including gender.
  • Internal relocation is presumably reasonable if the persecutor is a private actor.
  • Non-exhaustive list of factors adjudicators must consider when determining whether an applicant merits asylum as a matter of discretion, including filing taxes. 
  • Expand ground for determining whether noncitizen has firm resettlement, including whether they could have applied for asylum in a third country.
  • A government official does not acquiesce to torture unless doing so in their official capacity.
  • Permits disclosure of asylum application information to federal prosecutors

The proposed rule is deficient in numerous aspects that are difficult to address here. One sign of hope is that in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), the court issued an injunction preventing the implementation of categorical policies essentially eliminating domestic violence and fear of gang asylum claims from passing the credible fear interview. These policies were grounded in Matter of A—-B—-, which the court found “were arbitrary, capricious, and contrary to law.” Juan Antonio v. Barr, 959 F.3d 778, fn. 3 (6th Cir. 2020). Here, the administration has completely ignored the court order in Grace to present Matter of A—-B—- as good law. If challenged, the courts should similarly enjoin the regulations for restricting the rights of non-citizens through executive fiat disguised as rule making. 

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