Resources on Asylum and Refugee Law

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On Nov. 12, 2020, CLINIC joined the National Immigration Litigation Alliance, the Northwest Immigrant Rights Project, the Florence Immigrant and Refugee Rights Project, and Public Counsel in appearing as amici curiae in Pham v. Guzman Chavez. In this case, the Supreme Court will consider whether people in proceedings to determine their eligibility for withholding of removal may be released from immigration detention on bond. CLINIC is represented by WilmerHale.

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CLINIC, together with several other nonprofit organizations and law school clinics, appeared as amici curiae asking the Ninth Circuit to block a rule preventing people who transited through a third country from obtaining asylum.

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On Nov. 3, 2020 CLINIC and the University of Minnesota Law School’s Immigration and Human Rights Clinic filed an amicus brief in the Second Circuit Court of Appeals challenging the immigration judge's reliance on a Department of State Human Rights Report in denying the applicant's asylum claim from Honduras.

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On Oct. 16, 2018, the Board of Immigration Appeals (BIA) issued a precedent decision holding that an immigration judge (IJ) has initial jurisdiction over an asylum application filed by a respondent previously determined to be an “unaccompanied alien child” who turns 18 before filing the asylum application, in Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018).

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This fact sheet provides a brief overview of how practitioners can navigate immigration court proceedings for unaccompanied child clients pursuing initial asylum jurisdiction with U.S. Citizenship and Immigration Services.

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Each year the U.S. Department of State issues a Human Rights Report on every country in the world. These reports play an important role in adjudicating asylum and other humanitarian applications for relief, as immigration judges often rely heavily on their conclusions. Pending proposed regulations would give these reports even greater weight in immigration court. CLINIC has evaluated the Department of State reports for 2016 — the last year that the Obama administration produced the reports — and 2019 — the last year the Trump administration produced the reports — and found significant differences in length, subject matter and tone.

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On July 9, 2020, the administration issued a proposed regulation entitled, “Security Bars and Processing.” The proposed rule seeks to bar entry of asylum applicants who have tested positive for COVID-19, come from a country where COVID-19 is prevalent, and/or exhibit COVID-19 symptoms. The administration is using the economic impact of the COVID-19 pandemic as a basis to apply a mandatory bar to asylum and withholding of removal.

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On July 31, 2019, CLINIC joined eight other organizations that serve survivors of gender-based violence to submit an amicus brief to the U.S. Court of Appeals for the D.C.

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On July 15, 2020, CLINIC submitted comments on sweeping proposed regulations that would render most people fleeing harm ineligible for asylum protection. CLINIC strongly opposed both the limited time frame for submitting comments to such a radical rule change and to the substance of the rule.

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FAQs on the administration's issued two new rules: Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications and Asylum Application, Interview, and Employment Authorization for Applicants.

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On June 15, 2020, the Department of Homeland Security and the Executive Office for Immigration Review issued a Notice of Proposed Rulemaking, or NPRM, attempting to eliminate asylum for the most vulnerable of asylum seekers. This massive rule would essentially abolish the asylum system in violation of international and domestic law.

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The Supreme Court decision on June 18, 2020, in Dep’t of Homeland Sec. v. Regents of the Univ. of California has given DACA recipients a reprieve from the Trump Administration’s efforts to end the program. Nonetheless, until Congress acts to provide permanent status for those with DACA, it is important for practitioners representing DACA recipients to consider permanent relief options in each DACA client’s case.

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The Supreme Court decision on June 18, 2020, in Dep’t of Homeland Sec. v. Regents of the Univ. of California has given DACA recipients a reprieve from the Trump Administration’s efforts to end the program. Nonetheless, until Congress acts to provide permanent status for those with DACA, it is important for practitioners representing DACA recipients to consider permanent relief options in each DACA client’s case.

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Attached is a template to help immigration services organizations draft a public comment in response to the administration’s proposed Asylum Rule that would eliminate asylum for the vast majority of asylum seekers.

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CLINIC submitted comments on April 23, 2020, opposing the Department of Health and Human Services' Interim Final Rule, or IFR, outlining the procedure by which the Centers of Disease Control, or CDC, may "suspend the introduction of persons from designated countries or places, if required, in the interest of public health." CLINIC's comment calls upon the U.S. government to rescind this IFR and proclamation and end this unprecedented restriction on seeking asylum at the border.

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Practice pointer summarizes the Matter of L-E-A- decision and gives practitioners tips on how to represent asylum seekers with family-based claims.

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The Board of Immigration Appeals issued a decision where it concluded that an asylum seeker’s willingness or reluctance to accept an offer for permanent residence does not negate a firm resettlement finding.

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An immigration judge may issue an in absentia removal order if the Department of Homeland Security establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing.

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The Mercer Law School Immigration Appeals Clinic filed an amicus brief on CLINIC’s behalf on March 11, 2020. The amicus brief lays out how the particular social group of “Honduran transgender women” meets the three-prong test laid out in Matter of M-E-V-G-.

Update: After submission of this, and other amicus briefs, the Department of Homeland Security stipulated to remand the case to the immigration judge.

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CLINIC joined with 17 other organizations that serve asylum seekers to urge the Ninth Circuit to uphold a preliminary injunction in favor of asylum seekers affected by Customs and Border Protection’s (CBP) so-called “metering” policy.

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On Jan. 21, 2020, CLINIC submitted a public comment opposing the proposed rule to create additional criminal bars to asylum. CLINIC opposes this rule because it expands the categorical bars to asylum to include minor offenses and alleged criminal conduct, without consideration of proportionality. In our comment, CLINIC describes how the proposed rule is contrary to our obligations under the United Nations Refugee Convention, and how its implementation will result in the separation of families and the wrongful return of asylum seekers to harm.

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CLINIC submitted comments on January 13, 2020 strongly opposing proposed regulations which will impose new limitations on asylum seekers’ ability to obtain an employment authorization document (EAD) while their asylum applications are pending.

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CLINIC submitted comments on an Interim Final Regulation issued by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) that allows the United States to send asylum seekers at the southern border to countries with which the United States has entered into “asylum cooperative agreements.” These countries—Guatemala, Honduras, and El Salvador—are among the most dangerous countries in the Western Hemisphere and do not have government infrastructure to handle thousands of additional asylum claims.

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CLINIC filed suit on Nov. 22, 2019 challenging the implementation of the attorney general’s July 29, 2019 decision, Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), in the expedited removal context in credible and reasonable fear interviews. That decision overturned the part of the 2017 Board of Immigration Appeals decision in this case discussing whether Mr. L-E-A-’s proposed particular social group is cognizable.

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In September 2019, Defendants enacted new written policies designed to dismantle longstanding protections for asylum seekers who, like Plaintiffs, were targeted for persecution in their home countries because they are members of a particular family. These new policies deprive non-citizens in expedited removal proceedings of a meaningful opportunity to obtain asylum or withholding of removal based on their membership in a family-based particular social group (“PSG”)

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CLINIC submitted comments in response to the Department of Homeland Security’s (DHS) proposed regulation entitled “Removal of 30-Day Processing Provision for Asylum Seekers’ Initial  Employment Authorization Document Applications,” DHS Docket No. USCIS-2018-0001, RIN 1615-AC19. In this proposed regulation, which was posted on Sept. 9, 2019, DHS seeks to eliminate the rule, which requires it to process initial employment authorization documents (EADs) for asylum applicants within 30 days.

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This manual is designed to assist attorneys and accredited representatives in representing asylees and refugees to reunify with family members and seek lawful status for family already in the United States. The manual gives an overview of applicable laws, regulations, and guidance concerning the I-730 petition process. It also provides practical information on how to navigate the application process from completing the form I-730, to compiling evidence, to troubleshooting with government agencies.

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The USCIS Asylum Office’s Credible Fear Lesson Plan is designed to train asylum officers and set forth standards to be followed when conducting credible fear interviews. CLINIC analyzed changes to the 2019 USCIS Asylum Office’s Credible Fear Lesson Plan and added them to a comparison chart AILA had previously created outlining changes among the 2006, 2014, and 2017 Lesson Plans.  The comparison chart includes analysis from all three lesson plans with a summary of the 2019 changes.

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President Trump issued an Executive Order13888 on Enhancing State and Local Involvement in Refugee Resettlement, or the “Executive Order”, on Sept. 26 that will allow states and localities to restrict the resettlement of refugee in their areas.

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In a continued assault on U.S. asylum protections, the Trump administration has recently issued a number of new regulations and policies aimed at barring or restricting asylum eligibility for most asylum seekers. This article summarizes and provides updates on eight such efforts from the Trump administration: (1) the July 2019 third country transit bar; (2) the November 2018 asylum ban; (3) the attorney general’s July 2019 decision purporting to restrict asylum claims based on family membership; (4) the U.S.

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On Aug. 15, 260 faith organizations and leaders from across traditions submitted a joint public comment opposing an interim final rule that denies access to asylum to people who have passed through any other country before arriving at the southern border, requiring them to have applied for asylum in at least one country they passed through in order to ask for safety in the United States.

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Check out CLINIC's answers to frequently asked questions on third country transit regulations.

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This guide provides attorneys and fully accredited representatives with strategies and best practices for representing asylum seekers with in absentia removal orders.

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CLINIC, along with Kids In Need of Defense, or KIND, Public Counsel, and Goodwin Procter on July 1, 2019, filed a complaint in U.S. District Court for the District of Maryland. The suit challenges a new policy that limits the ability to seek asylum for certain children who arrived in the country alone. The lawsuit alleges that the policy by U.S. Citizenship and Immigration Services violates the plaintiffs' rights under the 5th Amendment, the Administrative Procedures Act, and the 2008 Trafficking Victims Protection Reauthorization Act.

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CLINIC joined 30 human rights organizations in calling on Attorney General Barr and Acting Homeland Security Secretary McAleenan to refrain from adopting proposed regulations set forth in an April 2019 White House Memorandum.

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Refugee and asylum law is largely a matter that impacts and is impacted by the international community, given the delicate nature of accepting aliens from other countries who are at risk of being persecuted. The obligations of the U.S. in this realm are defined by The 1951 Convention on the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, which have been incorporated into domestic law.

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Pursuant to directives from the Trump Administration, U.S. Customs and Border Protection has been shutting its doors to asylum seekers who present themselves at ports of entry along the U.S.-Mexico border. These directives have resulted in thousands of individuals seeking asylum under U.S. law stranded on the Mexican side of the border. Practitioners should therefore consider and prepare for potential DHS firm resettlement arguments against asylum seekers who are forced to remain in Mexico before ultimately gaining access to the U.S. asylum system.

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The U.S. government has issued in absentia removal orders to a large number of families primarily from El Salvador, Guatemala and Honduras. These families fled persecution and sought safety in the United States often proving they had a credible fear of returning to their home country.

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On March 12, 2019 CLINIC, joined by other faith-based organizations, submitted an amicus brief to the First Circuit Court of Appeals in the case O.L.B.D. v. Barr. In this case, Ms. O.L.B.D., a survivor of severe physical, sexual, and emotional abuse by her ex-husband, appeals the Board of Immigration Appeals denial of her asylum claim. The case presents a direct challenge to Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), the decision Jeff Sessions issued last summer which sought to greatly limit asylum eligibility for survivors of domestic violence and gang violence.

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As co-counsel to Mr. L-E-A-, CLINIC attorneys filed this brief with the Justice Department on Feb. 19, 2019. The client’s name and other identifying information has been redacted.

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The Department of Homeland Security, or DHS, released its new Migrant Protection Protocols, or Remain in Mexico Policy, on Jan. 24. The new policy sets out procedures to return asylum-seekers to Mexico to wait while their asylum case is pending in the U.S. immigration court system. There are still many unanswered questions about this effort to thwart asylum seekers, but this is what we know so far.

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U.S. Customs and Border Protection (CBP) shut its doors at the San Ysidro port of entry in mid-Novemeber of 2018, claiming that U.S. Citizenship and Immigration Services (USCIS) lacked the capacity to process fear claims in light of the arrival of the Central American migrant caravan. The “Exodus” members – more than 5,000 Hondurans, Salvadorans and Guatemalans — were greeted with hostility and ad hoc restrictions that prevented their ability to seek asylum. This has created a two-month long bottleneck at the U.S.-Mexico border, a humanitarian crisis and a watershed moment in U.S.

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The government recently issued two parallel guidance memos following a decision by District Court Judge Emmet Sullivan in Grace v. Whitaker.

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On Jan. 8, 2019, CLINIC joined 150 nonprofit organizations to submit a joint public comment opposing the interim final rule restricting asylum for some migrants at the border. This rule has the objective of restricting asylum protections for individuals seeking entry to the United States at places other than official ports of entry. The comment calls on the agency to withdraw the rule due to it being a violation of U.S. and international law as well as going against our moral values.

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On Dec. 17, 2018, the district court for the District of Columbia, in Grace v. Whitaker, struck down the administration’s new credible fear policies. On June 11, 2018, former Attorney General Jeff Sessions issued a decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018), where he attempted to fundamentally change the legal requirements for asylum eligibility.

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The ACLU, the Southern Poverty Law Center and the Center for Constitutional Rights filed a request for an injunction in the Northern California District Court in the case of East Bay Sanctuary Covenant v. Trump.  The district court granted a temporary restraining order on November 20, 2018.  This ruling temporarily enjoins (or stops) the government from enforcing the Asylum Ban, temporarily, until December 19, 2018 when the court will decide whether to issue a preliminary injunction. The questions and answers below discuss what the Asylum Ban will do if the judge does not extend the injunction or if the government appeals the injunction and the district court order is lifted.

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This section of the toolkit includes resources to help you represent asylum applicant clients.

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The notes below were issued by the Asylum Division and are available online.

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CLINIC Senior Attorney Victoria Neilson and Central American Legal Assistance (CALA) Senior Staff Attorney Heather Axford drafted this sample brief that practitioners can use to respond to immigration judges who demand that the asylum seeker state the particular social group(s) at a master calendar hearing as a prerequisite to scheduling the individual hearing.

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The Catholic Legal Immigration Network Inc., filed an amicus brief April 27 challenging Attorney General Jeff Sessions’ effort to insert himself into a settled immigration case, the Matter of A-B. The attorney general’s unusual move could result in changes to long-settled immigration policy, making it harder for many asylum seekers -- notably those fleeing religion-based persecution – to obtain protection in the United States.

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People seeking asylum and/or withholding of removal in the United States, who are either in expedited removal or reinstatement of removal proceedings, must go through a screening process with a U.S. Citizenship and Immigration Services asylum officer. After the screening process is complete, with a positive outcome, an asylum applicant can make a formal request for asylum and/or withholding of removal with an immigration judge. Asylum officers are trained to do protection screening interviews from lesson plans that set forth standards to be followed when conducting these interviews.

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A document outlining frequently asked questions about the Jan. 27 executive order that affects refugees and foreign travel.

This material was written before the temporary restraining order was issued on Feb. 3. It will be updated as warranted.

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Beneficiaries of approved I-130 petitions who are from Iraq or Syria are now able to qualify to apply for refugee resettlement. The new program is called Priority-2 (P-2) Direct Access Program for Iraqi and Syrian beneficiaries of an approved Form I-130 Petition for Alien Relative. The benefit is that these family members would gain access to the U.S. Refugee Admissions Program, but the applicant would still need to meet the definition of a “refugee” and be interviewed and screened.

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In recent years, more than 24,000 people from over 100 nations have been granted asylum in the United States. Asylees have often suffered from persecution in their country of origin, forced migration, detention in the United States, and the uncertainty of the asylum adjudication process. Most confront systemic and bureaucratic barriers to resettlement and integration, and need well-coordinated and prompt social services to ease their transition.

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This guide is designed to give service providers the tools and information needed to address the barriers to resettlement and integration faced by asylees and to better assist their clients.

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The Board of Immigration Appeals, or BIA, recently issued a decision, Matter of W-Y-C- & H-O-B, 27 I&N Dec. 189 (BIA 2018), that requires asylum applicants in removal proceedings to clearly delineate on the record before the immigration judge, or IJ, the “particular social group” in which they claim membership. The BIA further held that it would not consider newly proposed particular social groups on appeal that were not presented before the immigration judge. 

 

Background

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Expedited removal is a process that allows U.S. Customs and Border Protection, or CBP, to order a non-citizen removed without providing an opportunity for a hearing before an immigration judge, or IJ. CBP has the power to issue an expedited removal order if the non-citizen arrives at a port of entry without proper documents, or is apprehended within 100 miles of the border within 14 days of entry and lacks proper documents.

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In an effort discourage asylum claims from DACA and TPS holders, U.S. Citizenship and Immigration Services announced on Jan. 31, 2018, that it was changing the way the agency schedules asylum interviews. Instead of adjudicating them on a “first-in, first-out” basis, it would revert to a prior “last-in, first-out” basis, which is the way they scheduled cases from 1995 to 2014.

 

Background