USCIS and Federal Courts Deal Dual Blows to the Asylum Process
In the past two years, there have been many changes in U.S. asylum law that have had a negative impact on asylum seekers. On January 25, 2019, the U.S. Department of Homeland Security (DHS) Migrant Protection Protocol (MPP) did nothing to protect the migrants. On the contrary, it made it more difficult for individuals to apply for asylum. Thousands of asylum seekers arriving from Latin American countries without prior authorization to enter the United States, who were immediately placed in removal proceedings, were required to wait outside the United States for the duration of their entire U.S. immigration proceeding. The majority still continue to wait at the southern border for their day in Immigration Court.
Not too long after the MPP was implemented, on July 15, 2019, DHS issued a “third country ban.” This new rule precluded those immigrants who did not apply for protection in a third country through which they transited en route to the United States from applying for asylum, even if the countries they transited were even more dangerous than those from which they were escaping.
More recently, on June 26, 2020, U.S. Citizenship & Immigration Services (USCIS) issued new regulations regarding asylum in an effort to deter illegal entry of immigrants in the United States. These new rules, which take effect on August 25, 2020, will have serious implications for the new asylum applicants.
The significant changes to the regulations will affect the applicants’ livelihoods, particularly regarding their applications for Employment Authorization Documents (EADs). The new rules will increase the waiting time to apply for an EAD from 150 to 365 days from filing of an asylum application. Further, with very few exceptions, individuals seeking asylum who enter the United States without being inspected by immigration officials after the effective date of August 25, 2020 will be precluded from qualifying for an EAD based on their pending asylum applications.
Additionally, USCIS is changing the regulations regarding the one-year deadline for filing an asylum application. Those filing after the one–year deadline (who could have extraordinary or changed circumstances as an exception to the deadline) will no longer be able to obtain an EAD until the adjudicator finds a one-year deadline exception.
USCIS has also eliminated the “asylum clock” in order to deny asylum–based EADs for “unresolved applicant delays.” Although they are attributable to applicant requests, the delays in question can be for simple issues that were inadvertently overlooked by the applicants, many of whom do not have the benefit of legal counsel or assistance in their application processes. Denial of authorization to work to support one’s family due to only minor lapses in an applicant’s navigation of such a complex process is unnecessarily harsh. So harsh as to be fundamentally unfair.
The new regulations prevent asylum applicants with certain criminal convictions (not only for aggravated felonies, but also for minor issues with the law) from obtaining an EAD. Further, the USCIS will prohibit EAD eligibility for individuals who are paroled into the United States following their initial credible/reasonable fear interviews. It will automatically terminate EADs following asylum office denials, and it will also terminate EADs 30 days after Immigration Judge denials unless the case is appealed to the Board of Immigration Appeals (BIA). The new rule will also limit the validity periods for the EADs and will prohibit EAD eligibility for individuals with pending federal court petitions for review.
Finally, to add insult to injury, USCIS will implement a first-time-ever fee on asylum applications beginning October 2, 2020. In doing so, the United States joins only three other countries on earth in charging those fleeing persecution in their home countries, often with little to no financial resources, for the ability to request refuge.
As if the above changes are not enough, a set of new regulations will take effect on August 21, 2020 that will remove the 30-day processing period for EAD applications that are based on pending asylum applications. There will be no mandated processing timeline for asylum applicants, and this will lengthen the wait time for applicants to obtain EAD and be able to work.
Courts have not been supportive of the asylum seekers either.
On June 25, 2020, in the Department of Homeland Security vs. Thuraissigian, the Supreme Court held that a Federal Court will not review a credible fear claim that has already been reviewed by an asylum officer and an immigration judge.
On July 14, 2020, in Matter of M-D-C-V, the BIA held that an alien who is arriving on land from a contiguous foreign territory may be returned by DHS to that country pursuant to the MPP, regardless of whether the alien arrives at or between a designated port of entry.
The only positive outcome thus far from the courts has been the ruling of a District Judge on CAIR vs. Trump Administration, in which Judge Kelly of the U.S. District Court for the District of Columbia struck down President Trump’s “third country ban,” ending a restrictive policy that had virtually halted asylum at the southern border for the past two years. As asylum law continues to be restricted, and as we may see more changes in the future, we will also see continued litigation from various non-profit immigration groups and immigration attorneys who value the rights of immigrants, and particularly the rights of asylum seekers.