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Important Changes for Asylum Seekers under the Trump Administration

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

Last updated: June 3, 2020

Third Country Transit Ban ⁠— Asylum Ban 2.0

The Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued a rule that makes individuals who traveled through another country to reach the United States and who arrived at the southern border on or after July 16, 2019, ineligible for asylum unless they applied for asylum in one of the countries through which they travelled. The rule contains certain limited exceptions, including for victims of severe forms of trafficking and for those who came to the United States through countries that are not parties to international treaties regarding refugees. In effect, the rule is a de facto asylum ban on the majority of asylum seekers entering the U.S. through the southern border. Notably, asylum seekers may still be eligible for more limited forms of relief, namely, withholding of removal under the Immigration and Nationality Act (INA) or protection under the Convention Against Torture. 

The ban was challenged in federal court in East Bay Sanctuary Covenant v. Barr and on July 6, 2020, the Ninth Circuit ruled that the transit ban violated the laws of Congress and is arbitrary.  However, a stay of the injunction by the Supreme Court blocking the ban is still in place.  See the ACLU website for updates. The ban was also challenged in CAIR Coalition v. Trump.  In that case, the ban was struck down by a district court on procedural grounds.  That decision is not covered by the stay. As of this update, the decision had not been appealed by the government. See the CAIR Coalition web page for updates.

Eligibility for Asylum for Migrants Entering Outside an Official Port of Entry ⁠— Asylum Ban 1.0

In November 2018, DHS and DOJ promulgated rule and President Trump issued a proclamation that, together, made asylum seekers ineligible for asylum if they entered the United States from Mexico between ports of entry.  This ban eliminated critical due process protections for asylum seekers and undermined U.S. law which allows all asylum seekers to pursue asylum whether they arrived to the U.S. at or between ports of entry.

This rule was challenged in the courts in East Bay Sanctuary Covenant v. Trump and O.A. v. Trump.  Pursuant to this litigation, the rule has been enjoined and is not in effect.  However, the government has appealed. 

Metering/Turn Back Policy

“Metering” is a process by which the U.S. government refuses to accept people for inspection and processing at U.S. ports of entry along the southern border.  Instead, people seeking entry are turned back to Mexico where they are placed on unofficial waitlists and must wait, often for months, for their turn to present at the border.  Litigation challenging the legality of metering is pending in federal court in California, but the policy remains in effect.

Under the Asylum Ban 2.0, asylum seekers who tried, but could not enter the U.S. prior to the effective date of the ban because of metering, were deemed ineligible to apply for asylum.  However, a preliminary injunction order from the court in Al Otro Lado v. Wolf issued in March 2020 restored the right to seek asylum for the class of asylum seekers who were turned back or metered and barred from seeking asylum before July 16, 2019. 

Migrant “Protection” Protocols or Remain in Mexico

In January 2019, the Trump Administration introduced a policy — officially dubbed the Migrant “Protection” Protocols (MPP) — which requires asylum seekers entering at the southern border to be returned to Mexico during the pendency of their asylum proceedings. Certain categories of people are exempt from MPP, including, unaccompanied children, those placed in expedited removal, and certain “vulnerable populations” on a case-by-case basis. However, LGBTQ and HIV-positive people have been placed in MPP despite experiencing serious human rights abuses in Mexico. MPP is being challenged in federal court in Innovation Law Lab v. McAleenan.  The policy currently remains in effect.  

Asylum Cooperation Agreements/”Safe” Third Country Agreements

On November 19, 2019, the government issued an interim final rule that went into effect the same day allowing for the U.S. to send individuals seeking asylum along the U.S./Mexico border to countries with which the United States has entered into so-called “Asylum Cooperative Agreements” (ACAs).  Under this rule, individuals are prohibited from applying for asylum in the U.S. and will be removed to a third country if certain requirements are met.  Namely: (1) the U.S. enters into an agreement with a country that is a “third country” for the asylum seeker; (2) the asylum seeker’s “life or freedom would not be threatened in that third country” on account of their race, religion, nationality, political opinion, or particular social group; and (3) the “third country provides [asylum seekers] removed there…’access to a full and fair procedure for determining a claim to asylum or equivalent temporary protections.'” The U.S. has reached agreements with Guatemala, EL Salvador and Honduras.  None of these countries is safe for LGBTQ and HIV-positive people, who face widespread persecution and abuse in these countries.  The U.S. has already begun removing people to Guatemala.  The policy has been challenged in federal court.

Work Authorization for Asylum Applicants

On February 7th, in Asylumworks, et. al. v. Alejandro N. Mayorkas, et. al. , the U.S. District Court for the District of Columbia held that two Trump-era rules that greatly limited asylum-seekers’ access to work permits are invalid. As a result, USCIS must cease implementing these two rules known as the “Timeline Repeal Rule” and the “EAD Bar Rule,” and return to the status quo prior to implementation of these two rules. This is great news for asylum-seekers, as it removes significant barriers to accessing work authorization. We are awaiting news on whether the current Administration intends to appeal this decision. In the meantime, if you are a pro bono attorney please reach out to your Immigration Equality mentor for any case-specific questions (Updated on February 14, 2022).

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.