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 June 22, 2020, the government issued a final rule which removes the requirement that USCIS adjudicate initial applications for employment authorization based on a pending asylum application, in 30 days from the date of the receipt of the application for employment authorization. This rule also removes the requirement that applications to renew asylum application-based Employment Authorization Documents (EADs) be filed 90-days before the expiration of the applicant’s employment authorization. This rule goes into effect on August 21, 2020. In order to ensure that initial applications for employment authorization are adjudicated within 30 days, applicants who are eligible to file their applications for employment authorization should ensure that their applications reach USCIS before August 21, 2020.
Additionally, on June 26, 2020, the government issued another final rule which severely restricts the ability of asylum applicants to obtain employment authorization. The rule, which goes into effect on August 25, 2020, increases the time before which an asylum applicant can apply for employment authorization from 150 days to 365 days. The rule also precludes the following asylum applicants from applying for employment authorization:
- Asylum applicants who file their application for asylum after the one-year filing deadline on or after August 25, 2020
- Asylum applicants who entered the United States without inspection on or after August 25, 2020
- Asylum applicants who are convicted of or who commit certain crimes on or after August 25, 2020
- Asylum applicants who have been convicted of an aggravated felony, regardless of the date of conviction
In addition to limiting who is eligible to apply for employment authorization on the basis of a pending asylum application, the rule prohibits asylum seekers who have passed their credible fear interviews, and who have been granted humanitarian parole, from applying for (c)(11) EADs. The rule also terminates eligibility for pending asylum application-based employment authorization if an applicant’s asylum application is pending review in a Federal court. Under this rule, if there are any applicant-caused delays on the asylum application that are unresolved at the applicant files their application for an initial EAD based on the pending asylum application, the application for employment authorization will be denied.
Furthermore, the rule also removes the presumption that asylum applications which are not returned by USCIS within 30 days of filing, are deemed as properly filed. For more information on this rule and practical implications of this rule, please see our practice advisory here.