What Trump’s new ‘death to asylum’ rule actually says

The Trump administration has published a final rule on new procedures for processing asylum applications that will be effective on Jan. 11, 2021. The administration says that its objective is to “more effectively separate baseless claims from meritorious ones,” which “will better ensure groundless claims do not delay or divert resources from deserving claims.”

Immigration advocates call it the “death to asylum” rule.

Too many cases

First, some details — which are always a devil in immigration issues — and some definitions.

An asylum application is considered an “affirmative” application if it is filed with USCIS by aliens who are not in removal proceedings. It is considered “defensive” if the applicant is in removal proceedings and makes the request as a defense against removal.

According to DHS’ Refugees and Asylees Annual Flow Report for 2019, aliens filed 96,952 affirmative and 210,752 defensive applications in fiscal 2019.

As of the end of the third quarter of fiscal 2020, there were 373,957 affirmative asylum applications pending at USCIS.

Defensive asylum applications are not submitted until the applicant is in a removal hearing, so it is harder to determine what the defensive application backlog is. It is apparent, however, that the immigration courts can’t keep up with their cases. As of the end of October 2020, they had a backlog of more than 1.2 million cases.

False expectations

The immigrants and their advocates in the United States may not know how narrow our asylum laws really are.

8 USC §1158(b)(1) limits asylum to aliens who can establish that they have been persecuted or have “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

It has to be a well-founded fear of “persecution” — it can’t be a fear of any other kind of harm.  And the persecution has to be “on account of” one of the protected grounds. It can’t be for any other reason.

That’s the rule Congress created, and as I’ve said before: If members of Congress don’t like it, they should change it.

But what exactly does this new rule from the Trump administration do? Here are some highlights:

Expedited removal proceedings — Aliens who are apprehended within the interior of the country generally are entitled to a hearing before an immigration judge with all of the rights and privileges accorded by 8 USC §1229a. However, aliens who are apprehended in the vicinity of the border after making an illegal entry or who seek admission at a port of entry without a visa may be subject to the expedited removal proceedings provided by 8 USC §1225 (b)(1).

In expedited removal proceedings, aliens are removed without a hearing unless they establish that they have a “credible fear” of persecution. Under current regulations, this entitles them to the full hearing provided by 8 USC §1229a.

The rule will reduce the amount of time required to hear these cases by limiting their proceedings to an “asylum only” hearing, which will provide a streamlined, more efficient removal process.

Credible fear —The credible fear standard is too easy to satisfy.

According to Justice Department adjudication statistics for fiscal 2008 through fiscal 2019, 81 percent of the aliens who claimed a fear of persecution were able to establish a credible fear — and therefore be put in queue for an asylum hearing. But many of these people either weren’t bona fide asylum seekers or had meritless persecution claims. Only 14 percent of the aliens who established a credible fear of persecution were granted asylum at their hearings. In fact, 45 percent of them didn’t even apply for asylum.

The current regulations only require the alien to establish a “significant” possibility that he or she would be persecuted on account of one of the protected grounds to establish a credible fear. The rule raises the standard to a “reasonable” possibility.

Frivolous applications — Current regulations provide that an alien found to have “knowingly made a frivolous application for asylum” is “permanently ineligible for any immigration benefits.” The rule clarifies that “knowingly” requires either actual knowledge of frivolousness or willful blindness toward it.

Particular social group — The rule codifies long-standing standards from case law for identifying a particular social group, such as that a particular social group must be composed of members who share a common, immutable characteristic; be socially distinct; and not be defined exclusively by the alleged harm.

Definition of “persecution” — The rule provides that persecution requires an intent to target a belief or characteristic of the alien and the infliction of a severe level of harm by the government or by persons or an organization that the government is unable or unwilling to control.

“On account of” — The rule provides a list of reasons for harming an alien that “generally” cannot be attributed to the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

Internal relocation — If it would have been reasonable for an asylum applicant to have avoided persecution by living in a different location within his own country, he might not be eligible for asylum. The rule sets forth a list of factors that adjudicators should consider in determining whether internal relocation was a reasonable option.

It also establishes a presumption that relocation would have been a reasonable option if the persecutor was not the government unless the applicant demonstrates by a preponderance of the evidence that relocation would not have been a reasonable option.

Discretionary factors — The rule provides factors that should be considered when determining whether an applicant merits asylum as a matter of discretion. Asylum is discretionary. 8 USC §1158(b)(1)(A) says that the Attorney General “may grant asylum” to eligible aliens.

The firm resettlement bar — The rule identifies circumstances under which an alien would be considered to have been firmly resettled, which would make him statutorily ineligible for asylum.

Objection

The American Immigration Lawyers Association (AILA) claims that the rule will devastate the asylum system by making it nearly impossible for most applicants to successfully claim humanitarian protection in the United States.

Maybe every alien who appears at our border and says he wants asylum should get a hearing, but that isn’t possible.

The best we can do is to try to separate out the meritless claims — and many of those clearly exist — to prevent them from taking time away from adjudicating the claims of applicants who might be able to establish asylum eligibility.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.