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Articles Posted in Defensive Asylum

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The Trump administration is in full gear to expedite the removal of hundreds of asylum seekers, most of which are arriving from Central America.

As early as October of 2019, the Washington Post made public the existence of a confidential pilot program coordinated by the Department of Homeland Security and Department of Justice designed to swiftly deport asylum-seekers within a matter of days.

Under the program, Prompt Asylum Claim Review, the government would take a maximum period of 10 days to consider applications for asylum from individuals arriving at the U.S./Mexico border. Those denied would be swiftly removed from the country and returned to their homeland.

As a result, asylum determinations that usually take years to be made, will now be made in a matter of days.

It is easy to see how this type of accelerated removal from the country raises serious due process concerns and delegitimizes the complex asylum process.

A recent lawsuit filed by the American Civil Liberties Union against the Department of Homeland Security reveals that asylum seekers placed in this program are given only one window of approximately 30 minutes to one hour to call family members or retain counsel, and even where detainees have successfully retained counsel, CBP has denied attorneys physical access to speak to detainees, prohibited in-person meetings, and telephonic access. Where attorneys have tried to reach clients before their credible fear interviews, or hearings before an immigration judge, CBP has forced a detainee to proceed without opportunity to counsel with their attorney.

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In its latest attempt to limit the entry of asylum seekers to the United States, the Trump administration has published a new proposal in the Federal Register entitled, “Procedures for Asylum and Bars to Asylum Eligibility,” adding minor crimes to the list of offenses that would bar individuals from obtaining asylum.

The proposal primarily seeks to establish additional bars on eligibility for asylum seekers who have committed certain offenses in the United States after entering the country, including minor offenses. Offenses which have been committed in a foreign country will not be counted. Therefore, the proposal targets asylum seekers who were once present in the United States, now returning to the United States seeking asylum protection, or asylum seekers waiting for a decision on a pending asylum case in the United States who have committed an offense after entering the country.

Under this new proposal, the ineligibility bar would apply to the following individuals:

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In this blog post we cover where the top democratic presidential candidates stand on the issue of immigration. At the moment only three Republicans have announced their participation in the 2020 election, therefore we will focus on the democratic candidates until more Republican candidates have formally announced their presidential bids.

On the democratic front, over sixteen candidates have formally announced their participation in the 2020 Presidential election, with many more rumored to join their ranks in the coming months.

Over the last five months, presidential hopefuls, Former Vice President Joe Biden, U.S. Senator Bernie Sanders, U.S. Senator Kamala Harris, U.S. Senator Elizabeth Warren, and U.S. Senator Amy Klobuchar, have battled one another taking part in debates across the country. Not surprisingly, the topic of interest in these debates has turned to immigration.

Joe Biden

Joe Biden is a familiar face to all Americans, having served as former Vice President during the Obama administration for 8 years, but Joe Biden’s performances in the latest democratic debates have been lackluster at best.

In a recent debate moderators criticized Joe Biden for being part of an administration that was responsible for deported 3 million people, the most in United States history. When asked if he did anything to prevent the deportations, Biden deflected stating that his own power was limited and that the former President “did the best that was able to be done.”

Joe Biden has appeared weak on immigration. Although he has acknowledged that the American immigration system is broken, he has provided few solutions on how to unify Congress to pass comprehensive immigration reform. Joe Biden has also prioritized securing the South West border and publicly stated during debates that undocumented immigrants need to “get in line,” to obtain legalization like everyone else.  Like his predecessors Joe Biden’s immigration policy prioritizes the entry of highly skilled immigrant workers, and fails to offer solutions to the millions of undocumented immigrants living and working in the United States for decades.

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A new lawsuit filed in the Northern District of California now allows Freedom of Information Act (FOIA) applicants to challenge long standing delays in receiving their immigration records from the United States Citizenship and Immigration Services (USCIS).

The U.S. District Court has certified two class action lawsuits allowing FOIA applicants and attorneys requesting FOIA records on their behalf to join in the class action so that class members may receive timely determinations on their FOIA requests. This decision was made in response to significant delays that applicants face in obtaining their immigration records from the agency.

U.S. District Judge William Orrick who granted the class action request wrote in his order that delays in receiving immigration records are particularly precarious for, “Noncitizens in removal proceedings” who “particularly rely on FOIA requests because discovery is not available. Consequently, obtaining A-Files from defendants is critical in immigration cases; delays in obtaining A-Files leave noncitizen and their attorneys “in legal limbo” that inflicts substantial hardship.”

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On September 9, 2019, the United States Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register aimed at (1) removing a regulatory provision which states that USCIS has 30 days from the date an asylum applicant files the initial Form I-765, Application for Employment Authorization (EAD), to grant or deny the initial employment authorization application and (2) removing a provision that requires an asylum applicant to submit an I-765 Renewal of Employment Authorization to USCIS 90 days prior to the expiration of the employment authorization document’s validity.

Why the Change?

Initial applications for employment authorization from pending asylum applicants are the only category of employment authorization applications adjudicated by USCIS that have a required processing timeline attached to them.

Because of this, the agency must frequently divert resources away from other legal immigration application processing categories in order to meet the 30-day deadline for asylum seekers. These categories include family members of certain high skilled employees and those seeking adjustment of status in the United States, among others.

The proposed regulation is meant to improve the process for granting or denying an initial application for employment authorization documents (EADs) by reforming the current 30-day timeline pertaining to pending asylum applicants.

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On August 20, 2019, Immigration and Customs Enforcement (ICE) announced “enhanced coordination” efforts to remove Guatemalan adults and families arriving at the border more quickly. These efforts have been implemented to discourage Central Americans from attempting to enter the United States illegally and to deter human smuggling.

Acting Associate Director of ICE ERO Timothy Robbins made the following statement regarding these enforcement actions, “Breaking U.S. laws by illegally entering the United States is an ineffective manner to petition to legally remain in the United States. Ultimately, if you have no basis to remain in the United States, you will be apprehended and returned to your home country.”

ICE has announced that since mid-July it has implemented a more streamlined process to expeditiously remove Guatemalans who have no basis to remain in the United States.

According to ICE, this process allows the US to repatriate these individuals, “without utilizing resources to house aliens or manage their cases while they await immigration or removal proceedings out of custody.”

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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Today, July 16, 2019, the Department of Homeland Security and Department of Justice issued a joint interim Final Rule that has been published in the Federal Register and is effective immediately.

The interim Final Rule aims to place additional restrictions on the asylum application process and limit the eligibility of individuals seeking to apply for asylum.

What is the Rule about?

The Departments of Justice and Homeland Security are revising 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

In a Nutshell:

With the passage of this rule, applicants for asylum who enter or attempt to enter the United States across the southern border, without having applied for protection in a third country outside their country of citizenship, nationality, or last lawful habitual residence, will not be eligible for asylum.

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The White House recently issued a Presidential Memorandum to strengthen asylum procedures and safeguard the asylum system against fraud.

The Presidential Proclamation specifically orders the Attorney General and Secretary of Homeland Security to take several measures to enhance the security of the asylum system by July 28, 2019.

These measures require the Attorney General and Secretary of Homeland Security to enact proposals and/or regulations that would:

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The immigrant caravan from Central America has now reached the Southwest border. Thousands of migrants are now waiting in Tijuana for an opportunity to apply for asylum at the San Ysidro and Otay Mesa ports of entry.

Over the Thanksgiving weekend, tensions begin to mount as members of the immigrant caravan rushed the border fence at the San Ysidro port of entry, attempting to enter the United States illegally. In response, U.S. Customs and Border Protection officers shut down both south and northbound traffic at the San Ysidro border crossing south of San Diego for approximately six hours.

The decision to close the San Ysidro port of entry during the holiday weekend was unprecedented considering that the San Ysidro port of entry is one of the busiest land border crossings in the world with 70,000 northbound vehicles and 20,000 northbound pedestrians seeking to cross each day. Many Americans were left stranded in Mexico waiting for the port of entry to re-open to re-enter the country after Thanksgiving.

The saga unfolded on November 25, 2018 when San Diego MTS suspended trolley services at the San Ysidro Transit Center due to increased tensions at the border. Passengers seeking to cross into Mexico were forced to transfer to bus routes traveling to the Otay Mesa border. In similar fashion, Caltrans San Diego announced several closures.

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