Asylum Rules that Would Eviscerate Asylum Finalized

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The Department of Homeland Security, or DHS, and Department of Justice, or DOJ, have just published regulations that radically restrict eligibility for asylum, withholding of removal, and protection under the Convention Against Torture. The rule was proposed on June 15, 2020, and over 88,000 organizations and individuals commented. Nevertheless, the agencies have pushed forward publishing the final rule with only minor changes.

The new rules will take effect on Jan.11, 2021, and will only apply prospectively, to applications filed on or after the effective date. While it is likely that these rules will be challenged in federal courts, everyone should prepare for the dramatic changes to established law that these regulations will impose. Some of the most significant changes include:

  • Allowing immigration judges to “pretermit” asylum applications, meaning immigration judges would not need to hold an individual hearing if they believe the applicant’s application does not make out a prima facie case;
  • Narrowing the definitions of particular social group and political opinion;
  • Defining persecution for the first time, and emphasizing that the harm must be “severe;”
  • Increasing the burden to prove nexus, and stating that “in general” adjudicators “will not favorably adjudicate claims” where there is interpersonal animus, where claims relate to gangs, or where gender is the basis of the claim;
  • Increasing the burden to prove that an applicant cannot safely relocate internally;
  • Adding nine negative discretionary factors, including:
    • Entering without inspection,
    • Failing to seek asylum in a transit country,
    • Spending more than 14 days in a country of transit,
    • Accruing more than one year of unlawful presence in the United States, and
    • Failing to pay taxes in the United States;
  • Increasing the burden of proving that the applicant has not firmly resettled in a third country;
  • Expanding the definition of frivolous asylum applications;
  • Making it more difficult to prove government acquiescence in Convention Against Torture cases; and
  • Making it more difficult to succeed in credible fear interviews.

There are more changes to the rules than those listed above. If you are considering filing for asylum, we recommend you file as soon as possible before the Jan. 11 effective date.

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