The End of Asylum in the US as We Know It
In June 2020, the Department of Justice and the Trump administration published several proposed changes to the asylum application process (1). They state that this is to help streamline the procedures and reduce the number of unsubstantiated claims, as well as make any necessary clarifications on common issues that arise during the process (2). These sound great, but the proposed changes aren’t accomplish them. Instead, they will effectively dismantle an already dying asylum system, preventing those who need American help from receiving it. The asylum system does have its problems, but these changes will take the system apart instead of addressing the issues. They will make the criteria for qualifying for asylum virtually unobtainable, which could result in thousands of being left in their dangerous home countries. Below, we’ve listed some of the major proposed changes as well as some information about what they really mean for asylum seekers. Although it’s not exhaustive, we hope that it brings to light how pervasive these changes would be and the undue burden that would be placed on people fleeing from violence and oppression.
The asylum seeker must prove a “reasonable possibility” of persecution, not just a “credible fear”.
Gender no longer qualifies as a reason for persecution.
Victims of trafficking will only be protected if they are minors or if they were subjected to involuntary servitude, debt bondage, or slavery; adult sex trafficking victims are not included.
Gang affiliation and recruitment or harassment by guerrilla, criminal, terrorist, or other non-state organizations no longer qualifies as a reason for persecution.
Immigration judges may deny an asylum application and/or withholding of removal without a hearing if the seeker fails to establish a prima facie claim.
Asylum seekers who could move to another part of their country or to the country they last lived in and avoid persecution will be denied.
Asylum seekers who illegally enter the US, unless immediately fleeing violence, are likely to be denied.
Asylum seekers who traveled through one or more countries to get to the US without seeking asylum are likely to be denied.
Asylum seekers with a previous criminal record, even if it has been expunged or reversed, are likely to be denied unless there is a defect in the system that convicted them.
Asylum seekers who have failed to pay taxes or were late are likely to be denied.
Asylum seekers who have previously been denied two or more times are likely to be denied.
Asylum seekers who have withdrawn or abandoned previous asylum applications are likely to be denied.
Asylum seekers who miss an interview or meeting are likely to be denied.
Asylum seekers who were removed or deported from the US to their country of origin, and did not reapply for asylum within a year of the conditions in their country deteriorating, are likely to be denied.
Redefine “firm resettlement” to include if an asylum seeker could have resettled in a country they traveled through regardless of whether or not they were offered the opportunity
The status of “firmly resettled” applies to both asylum seekers and their children, meaning that neither party qualifies for asylum.
The burden of proof to show that “firm resettlement” does not apply is on the asylum seeker.
Pain or suffering inflicted or supported by a public official is only considered torture if the official is acting with the support of the state; the actions of “rogue officials” are not considered torture regardless of the extent.
People seeking asylum based on membership in a social group - including past or present criminal activity, gang or terrorist group membership, or a country of origin with high rates of violence - are likely to be denied.
Membership in a social group will also not qualify as a reason to reopen or reconsider a case, even if there was ineffective assistance of counsel.
Political opinion only counts as a reason for asylum if the asylum seeker disagreed with any non-state organizations and demonstrably acted against those organizations in support of the government.
Intermittent harassment, including brief detentions, does not count as persecution.
Interpersonal issues or violence that the government and officials were not aware of does not count as persecution.
Resistance to recruitment or coercion by non-state organizations, including gangs and terrorist groups, does not count as persecution.
Being targeted by criminal organizations for financial gain (e.g. extortion) does not count as persecution.
If the persecutor is not government-related, that is they’re acting of their own volition, then it will be assumed that internal relocation within the country of origin is possible and asylum will likely be denied.
The burden of proof to show that relocation was not possible is on the asylum seeker.
An asylum seeker who’s case is found to be “frivolous” by a judge will be ineligible for immigration benefits.
If the asylum seeker is not found to have a reasonable fear of persecution, they will be removed from the US without chance for appeal.
Any appeals against a judge’s “withholding of removal” decision will be review by the Board of Immigration Appeals, who will only look at the judge’s decision itself.
Executive Office for Immigration Review, Department of Homeland Security. “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review”. June 15, 2020.
Rappaport, N. “Proposed changes to asylum regs could address biggest immigration problem: the court backlog”. The Hill. June 22, 2020.