On December 11, 2020 DHS and DOJ published a Final Rule in the Federal Register that introduces significant changes to the asylum and credible fear process. These changes will make it nearly impossible for many asylum seekers to be eligible for asylum. In a press release, the DOJ stated that the goal of the Final Rule to “more effectively separate baseless claims from meritorious ones.” and to “streamline and enhance procedures for the adjudication of claims.”
The Final Rule directs immigration judges and asylum officers to deny a broad range of asylum claims, including those based on domestic and gang violence claims, with limited exception. Restrictions will also penalize migrants who cross the border illegally, use fraudulent documents, have a criminal conviction, and/or fail to file taxes. Applicants must fall under a more narrow category to be eligible for political asylum. Immigration judges may also overlook asylum applications without a hearing if the prima facie claim fails to demonstrate each element necessary to bring a claim for relief.
The Final Rule also affects applicants filing for relief under the Convention Against Torture (CAT). While prior laws allowed applicants to show that they were “more likely than not” to face torture if deported to their home countries, new laws require people to demonstrate a “reasonable possibility” of suffering torture.
Two lawsuits have been filed asking courts to intervene and stop the government from enforcing the rule.
(1) The first of these lawsuits was filed on December 21st by Immigration Equality, the TransLatin@ Coaltion, the Transgender Law Center, Oasis Legal Services, and the Blanck LGBTQIA+Migrant Project in the U.S. District Court for the Northern District of California. In this lawsuit, Plainitiffs allege that the new rule “eliminates eligibility for asylum to anyone with a gender-based claim.” Plaintiffs also allege that the rule “eliminates asylum relief for many individuals who are targets of inidividualized personal animus” which will devastate the chances for many LGBTQ/H asylum applicants to get asylum. Plaintiffs also note that the rule “further harms LGBTQ/H asylum seekers by sharply limiting the circumstances in which applicants may claim asylum after passing through third countries or after being in the United States for more than one year.”
(2) The second lawsuit was also filed on December 21st by Human Rights First in the U.S. Federal District Court in the District of Columbia. Human Rights First, an organizational plaintiff in the suit, argues that the rule violates the Immigration and Nationality Act (INA), the Administrative Procedure Act, international law, and the United States Constitution. In its complaint, it argues, “[i]f allowed to stand, the rule will eviscerate the ability of noncitizens fleeing persecution to obtain asylum and related relief in the United States. The United States will instead send refugees back to countries where they face persecution, torture, and possible death—the very outcome Congress expressly designed the INA to avoid.”
The Final Rule will become effective on January 11, 2021. Please call Blaszkow Legal PLLC at (703) 879-5910 for assistance with your asylum claim!
To view the Final Rule, please click here.