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The question may sound over-the-top, but it is a fair one to ask in this day and age. The Trump administration has employed innumerable illegal procedural devices to frustrate asylum-seekers, especially along the southern border where many are enrolled in the so-called "Migrant Protection Program," which forces them to remain in Mexico and to have their cases heard at the border. The legality of this program is highly questionable, though this is only the most prominent of the many illegal schemes that the Trump Administration has employed.

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More recently, however, the Trump administration has seized on another catastrophe of its own making - its disastrous non-response to the Covid-19 pandemic (as of today we have over two million cases and almost 117,000 dead) - to erect a further and for the time being a potentially fatal barrier to new asylum claims.

Since March 21, 2020, the Trump administration has instituted a new policy to turn away everyone arriving at the United States and seeking asylum on the grounds that they pose a public health risk because of potential Covid-19 infection. You can read about both policies here, and a Washington Post opinion piece titled. "Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers," and here from Human Rights Watch, "US: COVID-19 Policies Risk Asylum Seekers’ Lives".

The essential lawlessness of the Trump administration allows it to get away with these things because it simply evades congressional oversight and plunges on ahead, secure in the knowledge that it can do what it wants following the failure of the impeachment process to remove the president. There is a new, just filed ACLU lawsuit challenging the Covid-19 policy, "ACLU lawsuit claims Trump administration policy blocking migrants during COVID-19 illegal," and while I heartily agree litigation takes time, and lives will be lost in the interim.

On Monday, June 15, 2020, the Trump administration initiated another assault on substantive asylum law under the guise of "rulemaking" to "clarify" open questions concerning assignment procedures and classifications. See "The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal". This release is worth quoting in full.

The Department of Justice and the Department of Homeland Security (collectively, the Departments) submitted to the Federal Register for publication a notice of proposed rulemaking (NPRM) that would amend multiple provisions of the Departments’ regulations to create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations. The NPRM is now available for public inspection and is expected to publish in the Federal Register in the near future.

The NPRM proposes to make the following changes to the Departments’ regulations:

  • Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA);

  • Permit immigration judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief;

  • Clarify when an application is “frivolous”;

  • Clarify standards for the adjudication of asylum and withholding claims including amendments to the definitions of the terms “particular social group,” “political opinion,” “persecution,” and “firm resettlement”;

  • Outline factors for adjudicators to consider when making discretionary determinations;

  • Clarify the standard for determining the acquiescence of a public official or other person acting in an official capacity under the CAT regulations;

  • Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard;

  • Apply bars to asylum and withholding when making credible fear determinations; and

  • Clarify the requirement to protect certain information contained in asylum applications.

Overall, the NPRM, consistent with the INA, would allow the Departments to more effectively separate baseless claims from meritorious ones. This would better ensure groundless claims do not delay or divert resources from deserving claims. The Departments will consider written comments regarding the NPRM that are submitted per the instructions in the publication.

There has been litigation in which the Department of Justice lost cases challenging Atty. Gen. opinions that were "precedential" but were really "regulatory rulemaking" at the whim of the US Atty. Gen., who has authority to issue such decisions as a form of administrative law guidance. The most infamous case is a decision called Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in which the Atty. Gen. presumed to invalidate asylum claims based on the claimant being an Hispanic woman who was the victim of severe domestic violence where the state will do nothing to protect her.

In a remarkable decision called Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) the District Court for the District of Columbia, which hasauthority to review rulemaking decisions of the various Washington bureaucracies, the court substantially invalidated the Atty. Gen.'s decision on the grounds that it constituted unlawful"rulemaking" which was fatally at variance with basic principles of US asylum law in our federal statutes. Another more recent decision from the first circuit Court of Appeals came to essentially the same conclusion.

The new "rulemaking" announced by the Department of Justice and the Department of Homeland Security can be seen as a response to these decisions. However you can be sure that whenever these people talk about "effectively [separating] basis claims from meritorious ones," they are really talking about denying virtually all asylum claims.

The president of AILA, the American Immigration Lawyers Association, weighed in on the regulations with these comments.

AILA President Marketa Lindt stated, “This move by the administration to more severely restrict asylum protections for those fleeing persecution and torture is part of a systematic dismantling of America’s long-standing commitment to being a place of refuge. This proposed rule would burn an enormous hole through the longstanding framework of American asylum law which has already been undermined and diminished under the current Administration. Among other things, the rule would all but ban asylum for those fleeing domestic violence and gang persecution despite courts having found that such persecution meets the criteria for asylum. Additionally, Immigration Judges would be granted greater authority to end an asylum application without a hearing at all. We already know that some judges deny upwards of 90% of asylum claims where the respondent is standing before them, testifying to their persecution. This rule will result in even more people who are fleeing for their lives being denied protection and forcibly returned to life threatening danger.”

AILA Executive Director Benjamin Johnson added, “This rule would not leave us with an asylum process in anything but name, gutting any notion of asylum that still remains. These changes will result in legitimate asylum seekers who are fleeing racial, religious, political and gender persecution being forcibly returned to face assault, torture, and death. It is clear that the administration has weaponized the regulatory process in a way never seen before. We cannot stand by and watch the laws put in place by Congress be altered beyond recognition by the president. The U.S. government has the capacity to process the many asylum applicants we receive each year not only efficiently but also fairly and in a manner that is consistent with our laws and the Constitution. We must offer public comment, we must work with our allies and communities to ensure their voices are heard and taken into account, and we must commit to fight for our country’s values and get Congress and the courts on board with that fight too.”

I cannot see these "regulations" going into effect without a substantial judicial fight and many court challenges. In the meantime, the larger hope has to be that this lawless administration is thrown out of office in the national elections this November, and further that the rulemaking authority of the Atty. Gen. is taken away from the Department of Justice and the entire immigration court system is de-politicized. The best way to assure that this happens is to remove the immigration court system from the jurisdiction of the Department of Justice(where there is horrific conflict of interest between administration policy and the duty to fairly and impartially administer immigration law under the Immigration and Nationality Act) and by statute to make the immigration court system and "article III" court under the Constitution just as the federal bankruptcy courts are. Only then will we be able to have some safeguardsagainst lawlessness driven by a relentlessly anti-immigrant and partisan political agenda.

The title of this post is "Is US asylum law dead?" As for new asylum claims, the answer is "yes" until the illegal Covid-19 restrictions are overturned. As to claims already pending by claimants in the US, the answer is "maybe." It remains to be seen what outcomes there will be to the inevitable legal challenges the new "rulemaking" will force. Because of all these uncertainties, for the time being, I am marking my asylum law discussion elsewhere in my website by strikeouts and including an "under construction" notice.

These are hard times for anyone interested in the rule of law and the rights of asylum seekers.

Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law

55 Madison Ave., Ste 400

Morristown, NJ 07960

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