By Katie McCoy, staff member for Vol. 39 of the Minnesota Journal of Law & Inequality

 

Restricting immigration to the United States remained one of the Trump administration’s main priorities, even as his days in office waned. Dismantling the existing asylum system was a flagship issue for the Trump administration. Since taking office, the Trump administration issued policy after policy designed to upend protections for asylum seekers—vacating prior precedent to bar domestic violence-based asylum claims, forcibly separating over 2,000 families, and requiring many asylum seekers to remain in Mexico to fight their asylum case, among others. The National Immigrant Justice Center provides a detailed list of the nonstop efforts by the Trump administration to effectively end asylum protections.

Treatment of asylum seekers has become so abhorrent that the Canadian Supreme Court revoked the United States’ status as a “safe third country.” The Canadian Supreme Court condemned the United States for consistently flouting international law by criminalizing, detaining, and deporting asylum seekers to countries where their lives are in danger.

Even after losing the election, the Trump administration rushed to complete all remaining destructive policies on its immigration agenda. One of the most alarming policies to come out of the lame-duck presidency would eviscerate existing asylum law if implemented. On December 11, 2020, the Department of Homeland Security and the Executive Office of Immigration Review published a rule, titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020) (“the rule”). Opponents have dubbed this rule “the death knell” to asylum law and protections for vulnerable migrants. The 419-page rule was scheduled to take effect on January 11, 2020, just nine days before President-elect Biden’s inauguration.

 

I. The Rule Would Make It Nearly Impossible to Win Asylum, Defying Domestic and International Law

 

The rule would erect numerous insurmountable hurdles for asylum seekers that expressly violate national and international law. In violation of basic due process, the rule denies asylum seekers the opportunity to have their claim heard by an immigration judge. Additionally, the rule requires adjudicators to consider new “discretionary” factors, which, if not met, bar applicants from asylum absent exceptional circumstances. Among these discretionary factors is a bar to asylum for those who traveled through a third country en route to the United States without first requesting asylum in those countries. Notably, two district courts struck down this provision when implemented earlier last year. The rule also bars asylum for those who fail to enter through a designated port of entry. This provision violates Article 31 of the Refugee Convention of 1951. Although the United States is not a signatory to the Refugee Convention itself, it is party to the later 1967 Protocol to the Convention, and Congress has codified these protections into domestic law through the Refugee Act of 1980. See 8 U.S.C. § 1158 (permitting noncitizens to request asylum regardless of the manner through which they enter the United States).

Should asylum seekers manage to overcome these substantial hurdles, the rule would further exclude anyone fleeing gender- or gang-based violence from winning asylum. The rule would also redefine key terms incredibly narrowly and contrary to longstanding precedent, such as “political opinion,” “persecution,” and “particular social group.” See, e.g., Fatin v. I.N.S., 12 F.3d 1233, 1242 (3d Cir 1993) (finding “feminism” falls under the definition of “political opinion”); In re O-Z- & I-Z, 22 I. & N. Dec. 23, 26 (holding that persecution must be measured by the cumulative harm experienced by the petitioner); Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985) (emphasizing the importance of fact-specific determinations for particular social group analysis).

Practitioners speculate that most individuals who previously received asylum grants would be barred if they were to request asylum under these new regulations. Without the lifesaving protection of asylum, these individuals would likely have been deported to the country they fled and back in harm’s way. Deportation, under these circumstances, is often a death sentence.

 

II. Prospects for Blocking the Rule and Safeguarding Asylum Protections

 

In response to the severe harm this rule poses, several organizations filed a lawsuit on December 23, 2020, requesting a temporary restraining order that would prevent the rule from taking effect. Four immigrant rights organizations—Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrant Rights Coalition (“plaintiffs”)—argued that the rule would prevent the organizations from carrying out their organizational mission, as it destroys access to asylum for the vulnerable individuals they serve. The irreparable harm the rule would cause, they argued, therefore merited a temporary restraining order to preserve the status quo.

In addition to violating existing domestic and international law mandates protecting asylum seekers, plaintiffs argued that the provision violates the Administrative Procedures Act. Despite receiving nearly 90,000 comments in response to the proposed rule, the final published rule made minimal changes. The lack of engagement with the comments signaled a failure to adequately address and respond to the voluminous concerns raised with the proposed rule.

In a hearing before U.S. District Judge James Donato on January 7, 2020, the Judge focused on Acting Secretary of the Department of Homeland Security Chad Wolf’s unlawful appointment rather than delve into the nuance of the rule. Siding with four U.S. district courts, Judge Donato again found Wolf lacked the necessary authority to promulgate the rule. Judge Donato expressed his frustration at the government: “You have argued this four times and you rolled snake eyes.” Judge Donato continued, “You don’t keep peddling the same bucket of fish until someone buys it.”

On January 8, 2020, Judge Donato ordered a national preliminary injunction on the rule. The order finds the plaintiffs likely to succeed in establishing that the proposed rulemaking was done without authority of law. With the rule effectively blocked from implementation, the Biden-Harris administration may decide whether to appeal the preliminary injunction or withdraw the proposed rule. This victory provides momentary relief for asylum seekers and immigration advocates, who will now turn their attention to advocating for broader immigration reform.