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The Trump Administration Announces Proposed Rule Changes to the U.S. Asylum System

On June 11, 2020, the Trump Administration through the Department of Justice and the Department of Homeland Security announced proposed amendments to the regulations governing credible fear determinations and asylum applications. These rules would apply to any person seeking asylum in the United States, regardless of whether they entered with or without a visa, and could also impact the over 300,000 people who currently have affirmative asylum applications pending with USCIS and hundreds of thousands more with pending asylum applications before the nation’s immigration courts.

The proposed rules, set forth in 161 pages, would instruct immigration judges and asylum officers to deny asylum to any individual who has:

  • Passed through at least two countries prior to arriving in the United States
  • Stayed in another country for at least 14 days prior to arriving in the United States
  • Ever failed to pay taxes, paid taxes late, or failed to report any income to the IRS
  • Been unlawfully present in the United States for at least one year

The proposed rules would also:

  • Instruct Immigration Judges to use a person’s unlawful entry into the United States as a “significant adverse factor” when deciding whether to grant asylum – even though it is legal to seek asylum between ports of entry
  • Expand the grounds for which an asylum application can be declared “frivolous” – which in turn bans applicants from any other immigration relief
  • Redefine “persecution” to cover only “extreme” harms which would be a much higher standard than the one currently in place
  • Redefine “persecution on account of membership in a particular social group” – which was already severely limited by decisions taken by former Attorney General Jeff Sessions
  • Redefine “persecution on account of political opinion” to effectively eliminate the possibility of seeking asylum on the basis of political opposition to criminal organizations – which are currently ravaging Central American nations
  • Ban asylum applications on the basis of gender
  • Redefine “firm resettlement” to ban anyone who could have resettled in a third country on their journey to the United States – even if they didn’t know they could
  • Raise the standards for protection under the Convention Against Torture
  • Enhance screening processes at the border
  • Place new burdens on asylum applicants to prove internal relocation was impossible to avoid persecution

The proposed rules would revise current procedures that allow border asylum seekers the benefit of presenting their case in full-court proceedings to grant limited access to “asylum-only” court proceedings. Furthermore, the new rules would permit judges to deny asylum applications without a hearing based only on the evidence submitted.

From June 15 to July 30, the proposed rules are open to public comments which the government must take into account when preparing a final rule. The final rule is not expected to go into effect for several months – but as a firm, we will keep you updated on any developments and their potential impacts on vulnerable asylum seekers seeking protection in the United States.