2021 Asylum Law Outlook
By Emily Smith, RILA Legal Advocate
Update: On Friday January 8, 2021 (after this post was published), the U.S. District Court for the Northern District of California issued a preliminary injunction against the Procedures for Asylum and Bars to Asylum Eligibility rule that was to go into effect January 11. This injunction halt's the rule's implementation nationwide as litigation is pending.
The Trump Administration has made an unprecedented number of changes to immigration policy over the past four years, over 900 by some accounts. And it is continuing to make changes into the 11th hour. But with a new administration mere days away, we are hopeful for what is to come in 2021 with regards to protecting asylum seekers.
In December the Department of Homeland Security and the Department of Justice set the asylum system on fire. There were five final rules, a policy memo and two sets of proposed rules that came out. This is a brief summary of the changes that came in December and how they will affect us and our clients at RILA.
The Procedures for Asylum and Bars to Asylum Eligibility rule, also known by some organizations as the “Anti-Asylum Mega Rule” or “Death to Asylum Rule,” goes into effect on January 11. This rule included sweeping changes to the asylum process effectively preventing most applicants from establishing claims for asylum. There is pending litigation attempting to stay the implementation of these Rules.
The Executive Office for Immigration Review published two procedural rules, both will be effective on January 15. These rules will end Administrative Closure, except in very few circumstances. This is particularly discouraging because on December 11 RILA had our first Motion for Administrative Closure granted. This was a tool commonly used for immigrants with multiple pathways that we were hoping to use much more in the future for our clients who have other pathways outside of immigration court. Furthermore, asylum applications will be required to be filed 15 days after an immigrant’s first hearing. The court is adopting an “incomplete policy” on asylum applications where no box can be left empty, even if it does not apply. Every box must have an answer or “N/A” or the application will be rejected. If the application is not refiled within 30 days of the rejection, it is assumed that the case has been abandoned and the right to file an asylum application is waived. If any deadline from an Immigration Judge is missed, the ability to file that document is forever waived. Additionally, it minimizes what types of external materials an Immigration Judge can rely on. Resources from a foreign government and non-governmental sources may only be relied on when the Judge determines those sources are credible. We often use news sources from our client’s home country, and sometimes we find local articles about our client’s specific story. We frequently use reports from non-governmental organizations. These both would only be allowed if the Judge deems them credible. Furthermore, Judges can now submit their own evidence into the record, allowing them to introduce evidence to substantiate their own findings thereby cementing the belief that Immigration Judges are not neutral arbiters.
The Executive Office for Immigration Review published a Final Fee Rule which will be effective January 18. There will now be a $50 fee to file an asylum application in immigration court. If the fee is not paid in full at the time of filing, the filing will be rejected. Additionally, the cost of an appeal will increase from $110 to $975. There are other fee changes, but these are the two that will have the most effect of RILA clients. A lawsuit was filed on December 23, 2020, challenging the EOIR fee increases. A hearing is scheduled for January 14, 2021.
Two Notices of Proposed Rule Making came out in December. If these rules are made final, it will be much more difficult to reopen a case when an immigrant has missed a court date. We have reopened a handful of cases for our clients that missed a court date due to exceptional circumstances such as being in the hospital giving birth. This Rule would greatly restrict the ability to reopen such cases. Additionally, it will be impossible to request a continuance on a court case -- another tool we have used to push a court date if we need more time to prepare or if the client has another means of immigration relief.
These changes going into effect in the last days of President Trump’s term could take at least 6-9 months to be overturned. But we have a positive outlook for 2021 and some thoughts about what the new administration could bring.
The end of Remain in Mexico/MPP. The Biden Administration has said that it is committed to ending policies that deny protected entry to asylum seekers, put them at risk, and destabilize our neighbors and the broader region. This will likely be a phased approach and not a mass entry of the 20,000 people waiting in Mexico. Given the pandemic there is a need for assuring that there is order and safety taken into account. We are hopeful guidance on this will be released shortly after the Inauguration.
Repeal of “Safe Third Country” agreement. The new administration has stated it is committed to ending policies forcing asylum seekers to apply in ‘unsafe’ third countries.
Restore and protect gender-based asylum claims. The new administration has said it is committed to ending policies aimed to eliminate asylum for survivors of domestic violence. Unfortunately, due to the actions of the current administration, this change will not come overnight. This is going to be an arduous undertaking.
Hire more Judges and asylum adjudicators. The Biden administration has stated that it will direct the necessary resources to ensure asylum applications are processed fairly and efficiently, while treating families and children with compassion and sensitivity. This includes hiring more Immigration Judges, Court staff, interpreters, and Asylum Officers. This will be a huge step towards reducing backlogs in both Immigration Court and at the Asylum Office. Reducing the enormous backlogs is not going to happen overnight, and new adjudicators will require training. There will need to be adjustments to infrastructure and the changes will likely be slower going than we hope but the commitment is there.
There are numerous other promising changes we look forward to with the new administration. As previously mentioned, none of these changes will take place overnight. Some will need to go through lengthy court processes. Many will have to follow federal regulations of a comment period open to the public before the changes can be put into place. But the commitment from the Biden Administration to making these changes has us hopeful.