Updated: Good news! A federal district court issued a nationwide preliminary injunction blocking this sweeping “death to asylum” rule!
The Trump administration finalized a regulation on December 11, 2020 which completely guts years of jurisprudence on various elements of asylum law. The regulation was first proposed on June 15, 2020 and attracted 88,000 comments from the public against its implementation. Normally it would take over a year to respond to such a voluminous number of comments, but the Trump administration bulldozed the rule to become effective on January 11, 2021, days before the inauguration of a new administration.
What does the new regulation do?
The changes made by the regulation apply to all elements of the refugee definition, making it harder for anyone to qualify for asylum.
The new regulation ratchets up the harm required for asylum. It also makes it almost impossible to win an asylum claim for anyone who was a victim of domestic violence or gang violence in their countries. In addition, any claim for asylum based on gender, resisting recruitment by non-state actors, or personal animosity, will generally be denied under the new rules.
In addition, the new regulation makes it harder for asylum seekers to show that they would not be able to safely remain anywhere in their own countries. It also completely changes the framework on which asylum seekers would be considered firmly resettled in a third country and thus ineligible for asylum in the United States.
The regulation also adds nine factors that will cause an asylum application to be denied, unless the applicant can show “extraordinary circumstances” or “exceptional and extremely unusual hardship.” These factors that will lead to a denial of an asylum application are:
- Spending more than 14+ days in a third country on the way to the US
- Traveling through more than one country on the way to the US
- Accruing more than one year of unlawful presence in the United States, unless you’re a child
- Failing to comply with tax obligations
- Having 2+ asylum applications denied for any reason
- Withdrawing or abandoning prior asylum application
- Failing to attend asylum interview with DHS
- Moving to reopen based on changed country conditions that occurred 1+ years ago, or
- Criminal convictions that would have triggered criminal bars to asylum
Who does the new regulation affect?
The regulation applies to any asylum applications filed after January 11, 2021, but leaves the door open to adjudicators to apply certain elements of the changes to any pending applications before that date.
Will the new regulation be enforced?
The new Biden administration might take action to repeal the regulation but repealing a final regulation would take time. The new administration’s first priority would be the ongoing pandemic, and this regulation might stay on the books for a while before action is taken to repeal it.
In addition, several organizations are preparing lawsuits against the implementation of this regulation, including Center for Gender and Refugee Studies, Harvard Immigrant & Refugee Clinical Program, and Sidley Austin LLP. With their hard work, there might be an injunction against the implementation of this regulation before it goes into effect. However, there is no guarantee that a federal judge will issue such an injunction.
What action should I take?
If you were contemplating filing an application for asylum in the United States, the time to do it is before January 11, 2021. It is not an exaggeration to call this regulation the “death-to-asylum” regulation, a culmination of increasing draconian rules rolled out by the Trump administration against the asylum program. The hope is that they will be short-lived.
Do you need immigration assistance?
The Haq Law team understands the complex United States Immigration process and can guide you to make the most informed decision. Let us help you!
Contact us to set up an appointment today – 415.895.0661.