Understanding Asylum Policy Changes Under the Biden Administration
Explore the recent developments in asylum policy under the Biden administration, focusing on refugee admissions, humanitarian parole, third-country transit bars, and key discussion topics. Discover how initiatives such as the Afghan Parole Program and Executive Orders have impacted asylum processes.
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ADVOCACY WORKSHOP PART II: ASYLUM POLICY UNDER THE BIDEN ADMINISTRATION
DISCUSSION TOPICS Refugee Admissions Humanitarian Parole Third-Country Transit Bar Programs Abroad: CAM and Safe Third Country Agreements Effective Case Processing Due Process in Court Attorney General Decisions, Regulatory Changes, and Litigation Limiting Asylum and Access to Justice Changing Asylum Definitions: gang violence, private actor persecutor, political opinion, persecution, government protection, material support duress exception Particular Social Group: Gender (Matter of A-B-) and Families (Matter of L-E-A-)
REFUGEE ADMISSIONS PRE-BIDEN REFUGEE ADMISSIONS UNDER BIDEN Biden s promise: Will start with 125,000 and increase during term Advocacy: Ensure adequate funding to support case processing Ensure no vulnerable groups are left out of priority processing (priorities in FY 2020 included certain religious minorities) February 4, 2021 - Biden issued an Executive Order to rebuild and expand the United States Refugee Admissions Program (USRAP) establishes gender identity priority Slashed to 15,000 / year for FY 2021, the lowest in U.S. history since the Refugee Act of 1980, down from a cap of 110,000 when Trump took office (FY 2020: 11,814 admitted / 18,000 cap). 26 million refugees worldwide. 15,000 to 62,500 to 125,000 August 16, 2021 $500,000 Afghan
HUMANITARINA PAROLE PRE-BIDEN HUMANITARINA PAROLE UNDER BIDEN Requesting a Special Afghan Parole Program 1,500 2,000 6 officers February 2022 - We requested that DHS create a designated parole program for at-risk Afghans who urgently require protection as a complement to other protection avenues. These threats of violence are particularly acute for Afghans who have partnered with the U.S., former members of the Afghan National Security Forces, women, journalists, human rights defenders, religious and ethnic minorities, LGBTQ persons, and others. The Afghan Parole Program should encompass all SIV-eligible Afghans, regardless of the phase or stage of their process, and their family members, refugees referred to the U.S. Refugee Admissions Program (USRAP), including P1, P2, P3 and I-730 petitions.Humanitarian parole authority has been utilized since the end of World War II to protect wartime evacuees fleeing violence and persecution: following the Hungarian Revolution, the Vietnam War, Operation Pacific Haven in 1996, Kosovo in 1999, and Iraqi translators in 2007.
THIRD-COUNTRY TRANSIT BAR PRE-BIDEN THIRD-COUNTRY TRANSIT BAR UNDER BIDEN July 16, 2019 - Interim Final Rule published at 84 FR 33829 barring from asylum any refugee who traveled through a third country without seeking and being denied protection, with limited exceptions for victims of a severe form of human trafficking or the only countries the individual travelled through were not parties to the 1951 U.N. Convention relating to the Status of Refugees,the 1967 Protocol Relating to the Status of Refugees, or the U.N. Convention against Torture.INA 208 (b)(2)C) and (d)(5)(B) and 8 U.S.C. 1158 (b)(2)(C) and (d)(5)(B). Not at issue: June 30, 2020 The District Court for the District of Columbia vacated the Third Country Transit Rule . The Administrative Procedure Act (APA) requires that rules must be published at least 30 days before they take effect to give notice to the public and allow for public comment unless there is good cause not to comply, or where the rule involves foreign affairs. Judge Kelly found that USCIS and EOIR failed to establish that the good cause or foreign affairs exceptions applied to the interim final rule, as the Administration appeared to base the rule on a single news article from the Washington Post suggesting a link between U.S. immigration policy and the number of people coming to the U.S. This ruling applies only to the District of Columbia. See also, CAIR Coalition et al. v. Trump,No. 19- 2117. Resulting in negative CFIs and grants of Withholding of Removal December 17, 2020 - DHS and DOJ published a Final Rule which, with minor changes, finalizes the Interim Final Rule. The rule is effective January 19, 2021. Read our Special Report and Practice Advisory to learn more about how this rule has been implemented in practice and see AILA's practice pointer. See also East Bay Sanctuary Covenant vs. Barr.
PROGRAMS ABROAD PRE-BIDEN PROGRAMS ABROAD UNDER BIDEN CAM (Central American Minors) program February 6 - Secretary of State Blinken announced the termination of the Asylum Cooperative Agreements with the Governments El Salvador, Guatemala, and Honduras under which asylum seekers in the U.S. were sent to Central America to seek protection.A recent congressional investigation found that not a single person sent to Guatemala received asylum and concluded that individuals were subjected to degrading treatment and effectively coerced into returning to their home countries, in violation of U.S. and international law.Other investigations revealed that Guatemala never had the capacity to process asylum seekers. SeeAILA - Senate Democrats Report for more. Assistance: financial and capacity building Disaster recovery Job creation Institutions of peace and justice / rule of law and good governance (anti-corruption support) Third-country Agreements (Read our Policy Analysis and see this report on the impact) Guatemala: signed July 26, 2019, first removal late Nov 2019 El Salvador: December 15 - DHS announced that the United States and El Salvador have concluded the implementation accords for the Asylum Cooperative Agreement Increasing assistance Honduras: December 18 - DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement CAM March 10 begins again June 15th expanded January 28th states sue
EFFECTIVE CASE PROCESSING PRE-BIDEN EFFECTIVE CASE PROCESSING UNDER BIDEN Case management program to assist immigrants in attending their court hearings (Immigrant groups hopeful and wary of Biden administration). The 2016 pilot program, which served nearly 1,000 people, had a 99% appearance rate with ICE and 100% appearance rate in Immigration Court, according to a report by the Office of the Inspector General. August 20, 2021 Notice of Proposed Rulemaking Interim Final Rule Comments due Affirmative merits interview Reduced timeline New status conference process Full IJ review (responds to our concerns on unequal bifurcated process) Now ability to present new evidence in 240 per our suggestion Eliminates roll out to non-detained families per our notification no established justification for this If review not requested, now automatic (v. removal order) we raised this issue RFRs Feb 27 EOIR increases filing fees (BIA) (appeals $110 to $975) Expand representation, LOP, friend of the court (Nov 2019 policy), and language assistance (in court and with forms) Aiding and abetting immigration Regulation Limiting Access to a Fair Asylum Process
DUE PROCESS IN COURT DUE PROCESS IN COURT Article I Court: Congress (Op-Ed ) continued: The Federal Labor Relations Authority (FLRA) overruled the findings of its regional director and concluded that immigration judges are management officials, effectively ending the ability of the National Association of Immigration Judges union from engaging in collective bargaining. Docket management: Continuances, Termination, Administrative Closure, Status Dockets Matter of Castro Tum Aug 25 - Proposed Rule limiting administrative closure, briefing time, etc. Public Comment Nov 27 - Proposed Rule heightening good cause standard Public Comment January 7 - EOIR issued new policy guidance that encourages adjudicators to consider EOIR s new proposed rule on continuances for helpful information even though the proposed rule has not been finalized. AG power used for reversing BIA decisions, increasing the Director s power to adjudicate cases, and IJ referral power Partial hiring judges recruitment of diverse bench - review, and termination procedures Case completion quota (700) Nov 27 Proposed Rule limiting Motions to Reopen / Reconsider and Stays of Removal Public Comment and Podcast Recalendaring 350,000 administratively closed cases See our Policy Analysis for an overview of these issues and our Policy Analysis on due process in court such as televideo hearings and access to interpreters.
RE-DEFINING ASYLUM PRE-BIDEN RE-DEFINING ASYLUM UNDER BIDEN Migrant Center Resources: Matter of A-B- Public Comment on Persecution and Political Opinion Domestic Violence Gang Violence CLE Webinar (AB and LEA) recording Personal Problem / Persecutor Policy Analysis on PSGs and Family Podcast on Material Support and Duress Complete Helplessness Where we re going: Asylum Rule June 15, 2020 Will allow for gender, gang, and political opinion Silent on family, persecution, unable and unwilling to protect, duress Persecution Political Opinion Self-imposed deadline to issue regulations that could level the playing field for people fleeing domestic violence and gang brutality came and went five months ago. Family as PSG: Matter of L-E-A- Material Support Bar: Matter of Negusie
REDEFINING ASYLUM PRE-BIDEN REDEFINING ASYLUM UNDER BIDEN November 19 A District Judge issued a nationwide temporary restraining order preventing Trump s Final Rule creating mandatory bars to asylum from going into effect on November 20, saying that it would have deprived valid asylees of ever obtaining asylum, regardless of whether they have rehabilitated themselves, regardless of whether their criminal conduct occurred many years earlier, or regardless of whether they have committed acts that Congress has said should not render one ineligible for asylum. See notes for list of bars. For more, read the complaint and an overview of the enjoined regulation. The case is Pangea Legal Services et al., v. DHS, et al. No update
Lunch Advocacy Workshops 12:00pm - 1:00pm Central Standard Time Wednesday: Detention Policy Thursday: Interior Enforcement Friday: Affirmative Benefits Tune-in here: https://us04web.zoom.us/j/3748216758?pwd=U3JjTFk5b HB5WEJHNDcrRm56UlVyUT09 Support our Work: www.migrantcenter.org/donate Stay in Touch: www.migrantcenter.org (more news and analysis, job and volunteer postings, and learn more about our work) admin@migrantcenter.org (newsletter sign-ups and inquiries) https://www.facebook.com/migrantctr P.O. Box 90382 San Antonio, TX 78209 210-802-6061
