New Asylum Regulation Proposed

On June 15, 2020, the Department of Homeland Security and the Department of Justice proposed a 161-page regulation that would greatly restrict our country's asylum system. There is a 30-day period for the public to comment on the proposed rule.

The government states the proposed rule will "more effectively separate baseless claims from meritorious ones. This would better ensure groundless claims do not delay or divert resources from deserving claims."

In summary, the proposed rule would:

• Redefine "persecution" as "an extreme concept of a severe level of harm." This would not include "every instance of harm that arises generally out of civil, criminal, or military strife in a country," nor "any and all treatment that the United States regards as unfair, offensive, unjust, or even unlawful or unconstitutional."
• Permit Immigration Judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief.
• Define the following as negative factors: crossing or attempting to cross the border illegally, not filing taxes, working without authorization, or using fraudulent travel documents.
• Require Immigration Judges to consider adverse factors such as traveling through another country to reach the U.S., living undocumented in the country for more than a year, and having criminal convictions that were vacated or expunged.
• Eliminate gender-based asylum for women who are victims of domestic violence and LGBTQ+ persons fleeing persecution.
• Enable DHS officers to rule that an asylum application is "frivolous," something that only Immigration Judges and the Board of Immigration Appeals presently can do. A "frivolous" finding bars the applicant from obtaining any US immigration benefit for the rest of his or her life.
• Establish that a well-founded fear of being persecuted by gangs and terrorists would no longer be a basis for granting asylum.
• Deny asylum to young people who face forced conscription by terrorist groups or gangs.
• Eliminate protection under the United Nations Convention Against Torture to persons who were tortured, physically or mentally, by the police or members of the military who are deemed as "rogue" officials acting "not under color of law."
• Make it harder for asylum-seekers in expedited removal proceedings to apply for withholding of removal when they have been barred from asylum by this Administration’s existing changes to the asylum process.

These are only some of the restrictions which would be imposed if the proposed regulation were allowed to go into effect as is.

To meet the statutory standard of eligibility for asylum, a person must satisfy each of the following elements in the definition of a refugee created by 8 U.S.C. § 1101(a)(42)(A): 

1. The person must have a "fear" of "persecution;"
2. The fear must be "well-founded;"
3. The persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion;"
4. The person must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.

The proposed rule attempts to significantly restrict the accepted interpretation of the above section of law.

Greg Chen, Director of Government Relations for the American Immigration Lawyers Association, called the proposed rule "the kitchen sink of asylum bans and will end any notion of asylum that still remains, recognizing that this administration has already issued so many previous bans."

House Judiciary Committee Chair Jerry Nadler (D-NY) and Zoe Lofgren (D-CA) who chairs a subcommittee on immigration policy and enforcement, condemned the proposal as follows:

"The Trump Administration’s renewed efforts to dismantle our nation’s asylum system are abhorrent, un-American, and illegal. As we have seen time and time again over the last four years, this President is attempting to rewrite our immigration laws in direct contravention of duly enacted statutes and clear congressional intent. This latest effort continues a pattern of executive overreach, violation of the separation of powers, and continued assaults on our Constitution when it comes to rewriting our nation’s immigration laws. In this historic moment, preserving the rule of law and the nation’s long tradition of asylum-seeking is crucial. We can and must continue to be a beacon of hope and freedom across the world."

If the DHS and the Justice Department attempt to implement the regulation as is, it can be expected that it will be immediately challenged in Federal Court.