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Federal Courts Block Asylum Restrictions as Biden Administration Takes Office


In June 2020, the Trump administration proposed a sweeping set of rules that would fundamentally reform the existing asylum system. Under the new rules, immigration judges would generally reject asylum claims from people who fear persecution in their home countries based on their gender or resistance to recruitment by gangs or guerrillas. The rules would change the definition of persecution to cover only extremely severe harms and exclude routine instances of harm that arise from civil, criminal, or military problems in a person's native country.

Furthermore, the proposed rules list factors that immigration judges should use to deny relief to asylum seekers, even if they meet the necessary burden of proof to qualify for asylum. These factors include unauthorized entry or attempted entry into the country, failure to file taxes, working in the country without employment authorization, and the use of fraudulent travel documents. The rules also make a grant of asylum entirely discretionary, allowing immigration judges to deny asylum even to those who legally qualify for asylum. These are only a few of the massive changes that the rules would make to the asylum system, which also builds on previous policies put into place by the Trump administration, such as denying asylum to any individuals who travel through a third country to reach the U.S.

Federal Courts Invalidate Actions of Illegally Appointed Acting DHS Secretary

Despite the more than 87,000 public comments submitted by a wide-ranging group of individuals, advocacy groups, and others, the Trump administration persisted with the changes, which would have become effective on January 11, 2020. However, Judge James Donato of the U.S. District Court in San Francisco granted a request for a nationwide preliminary injunction against the rules before they became effective. In his ruling, Judge Donato agreed with other federal judges in separate lawsuits who found that the Department of Homeland Security (DHS) had failed to follow proper legal procedures when appointing Chad Wolf as acting secretary of DHS. These court decisions have blocked policy and rule changes that Wolf approved as acting secretary, including the termination of the Deferred Action for Childhood Arrivals (DACA) program.

Biden Administration Begins to Revoke Trump Administration Restrictions on Asylum

The Biden Administration has revoked some of the Trump administration’s restrictions on asylum and has announced its intent to continue to do so. For instance, on his first day in office, Biden signed an order directing U.S. Customs and Border Protection (CBP) to stop returning migrants to Mexico under the Migrant Protection Protocols (MPP). MPP is widely known as the “remain in Mexico” policy. Immigrants who arrive at the U.S. border seeking asylum receive an immigration hearing date and are sent back to Mexico to await their hearings. Although Biden has stopped this practice, it does little for the tens of thousands of immigrants already returned to Mexico under MPP. During the last year, CBP continued to return people to Mexico under MPP, even though the Trump administration indefinitely stopped all MPP hearings in March 2020 due to the COVID-19 pandemic. It is unclear how many of these immigrants remain in Mexico under MPP at this point.

The current administration also reportedly intends to revoke the so-called “safe-third-country-deals,” requiring people seeking asylum to apply for asylum in the first safe country they enter after leaving their native countries. Advocates widely saw this policy as an attempt to prevent immigrants from Central American countries such as Guatemala and Honduras from crossing through third countries to apply for asylum in the U.S.

Talk to Us Today About Your Immigration Law Needs

Bashyam Global Immigration Law Group provides legal services in all areas of immigration law. We represent individuals and companies in both family and employed-related immigration matters. Our attorneys maintain the most up-to-date knowledge on every changing immigration rules, policies, laws, and court decisions. Together, we can determine the best course of action in your case and work to get you the relief you are seeking. Contact our offices to schedule an appointment today at 919-833-0840.