Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.

How the Diversity Visa (the Lottery) Actually Works

President Donald Trump has expressed his distaste for the diversity visa on numerous occasions.  In the Rose Garden on February 15, 2019, Trump exclaimed, "And then you have the lottery.  It's a horror show, because when countries put people into the lottery, they're not putting you in; they're putting in some very bad people in the lottery.  It's common sense.  If I ran a country, and if I have a lottery system of people going to the United States, I'm not going to put in my stars; I'm going to put in people I don't want."

Trump continued with his criticism in a campaign rally in Cincinnati on August 1, 2019, stating, "And you pick people out of a lottery.  Well let's see, this one is a murderer, this one robbed four banks, this one I better not say, this one another murderer, ladies and gentlemen, another murderer.  Do you think [these countries] are going to put their great citizens . . . into the lottery?  Look at the people they put into these lotteries."

Trump's message has been consistent.  In 2017, Trump told graduates f the FBI National Academy, "They have a lottery. You pick people. Do you think the country is giving us their best people? No. What kind of a system is that? They come in by lottery. They give us their worst people, they put them in a bin, but in his hand, when he’s picking them is, really, the worst of the worst. Congratulations, you’re going to the United States. Okay. What a system — lottery system."

It is actually quite amazing.  Everything Trump says about the diversity visa lottery is completely wrong.  Not one bit of it is true.  The governments of foreign countries play no role in who applies for a diversity visa through the lottery system.  There is no bin.  No names are drawn from a hat.  Those who win the lottery, and thus have a chance to immigrate to the United States, are vetted to ensure they have no criminal record.  Indeed, in order to obtain the visa, a lottery winner must have a certain level of education or skill to ensure they will not be a drain on the U.S. welfare system.

Through the diversity lottery, visas are made available for 50,000 people each year.   The idea is to give people from countries that have traditionally sent fewer immigrants to the United States the chance to immigrate to the United States.

If a country has sent 50,000 or more immigrants to the United States in the last five years, then people from that country may not receive a diversity visa. Based on this criteria, people from Canada, Mexico, the Philippines, the Peoples Republic of China, El Salvador, Haiti and South Korea, to name a few, are not eligible.

The diversity visas are distributed by region, with people from the regions sending the fewest immigrants to the United States in the previous five years receiving the most visas. The regions which currently receive the most visas under the program are Africa and Europe. No one country can receive more than seven percent, or 3,500, of the visas available for that year. The visas are distributed at random.

To apply, a person enters the lottery online during the registration period. Winning the lottery does not guarantee that the applicant will receive the visa. Rather, the applicant must meet certain additional requirements. The applicant must have graduated high school, or have spent two out of the last five years in an occupation requiring at least two years' training or experience.

A person does not need to meet the eligibility requirements in order to apply online. This has led to a number of disappointed lottery winners. That is, a person can win the lottery only to learn that he or she does not have the required education or work experience to receive the visa.

The be able to immigrate to the United States, a person who receives a diversity visa must still be admissible pursuant to U.S. immigration law.  That means the person may not have committed certain crimes, such as murder, theft or sexual assault.  The person cannot have certain communicable diseases, be a habitual drunkard, be likely to become a public charge, or be considered a threat to national security.

To summarize, a person desiring to immigrate to the United States enters the diversity visa lottery.  That person's government has nothing to do with the application.  Foreign countries do not put people's names into a bit, or a hat, or a box.  An individual applies through the internet by going online.  A computer program picks names randomly.  In order to come to the United States, the person just have a minimum level of education or work experience, and cannot have committed certain crimes.

Thus, when Trump describes the diversity visa, he is engaging in nothing more than fear mongering.  This fear mongering fits in with his overall approach to immigration, where he manipulates the fear of his followers to promote more restrictive immigration policies.  He ignores studies which show immigrants as less likely than those born in the United States to commit violent crimes, instead painting all immigrants as potential threats to the public safety.  Education and access to accurate information can prevent Trump from manipulating the ignorance of his followers to pervert immigration law and policy.

By:  William J. Kovatch, Jr.

Trump's Narcissistic Desire to Use the Border Wall to Cement his Legacy Has Created a Cruel and Unnecessary Government Crisis

Two and a half weeks into the partial government has given Americans yet another opportunity to assess the leadership skills, or lack thereof, of its current President, Donald Trump.  While I am not a psychologist and don’t claim to be making a clinical diagnosis, Trump’s refusal to sign a budget that doesn’t appropriate $5.7 billion for a wall on the US-Mexico border only further shows his dangerously narcissistic tendencies.

 

Like many narcissists, Trump is manipulative.  He has shown his character for taking advantage of people’s weaknesses for his own benefit.  For example, all during the presidential campaign Trump insisted that not only would he build a wall, but that Mexico would pay for it.  Having Mexico pay for the wall was never even a remote possibility.  But the claim won him cheers ad accolades from his supporters.  Now that it is clear that Mexico will not be paying for the wall, Trump is manipulating the ignorance of trade agreements and how tariffs work among his supporters to make the claim that Mexico really will be paying for the wall.

 

Trump argues that by scrapping NAFTA and concluding the United States-Mexico-Canada Agreement (USMCA), Mexico will be paying for the wall through tariffs paid to the United States.  Let’s breakdown the inaccuracies of this claim.  USMCA did not really scrap NAFTA.  Rather, it built upon NAFTA structures to adjust some of the agreed upon tariff rates.  In fact, trade agreements are not really a vehicle for a country to raise revenue.  Government typical enter into trade agreements to try to open more markets for its exporters by having their counterparts lower their tariffs.  The United States attempted to open more markets for US agricultural goods, for example, by getting Canada and Mexico to lower their tariff rates.

 

At any rate, governments do not pay tariffs.  Importers do.  Importers need to make a profit, so they typically pass the tariffs of to the consumer in the form of higher prices.  Even where US tariffs increase, Mexico will not be footing the bill.  US consumers will.

 

Moreover, USMCA is not yet part of US law.  To become US law, Congress will have to act.  Either 2/3 of the Senate must ratify it as a treaty, or both Houses of Congress must approve implementing legislation, just as they did for NAFTA.  Until Congress acts, the USMCA has no effect on US law.

 

However, many Americans lack the very specific knowledge of how trade agreements and tariffs work.  Trump is manipulating that ignorance to make it appear as though he is living up to his campaign promise.

 

Trump is attempting to  manipulate the racially-based fears of his supporters to support his refusal to sign legislation to fund the Government unless he gets his wall.  In defending his desire for a wall, Trump cherry-picks cases where heinous crimes were committed by undocumented aliens.  In doing so, Trump creates the impression that all undocumented aliens are violent criminals.  This is consistent with his claims during the campaign that Mexicans are rapists and murders.  He and his supporters ignore statistics showing aliens, including undocumented aliens, commit fewer crimes than native born US citizens.

 

Trump has demonstrated a complete lack of empathy for those adversely affected by the shutdown.  Indeed, through some of his public statements, Trump appears to be saying that those suffering because of the shutdown are getting what they deserve because of their lack of support for him.  He has tried to change lexicon of the debate, calling the shutdown a “strike” in closed door sessions with congressional leaders, as if to shift the blame on the governmental employees.  He has noted that most of the workers furloughed or working without pay are Democrats, as if to say that they deserve what they get for supporting the opposition party.  He has shown little concern for the 800,000 who may be going without a paycheck.  Moreover, he has given no attention to the government contractors, who will not only be going without a paycheck, but who, unlike government employees, will not receive back pay.

 

This is another example of Trump’s manipulation of the ignorance of his supporters.  Many of his supporters, who do not understand how government works, have been quick to argue that since only non-essential employees are being furloughed, it shows the government is too big and ought to be cut.

 

The fact is, Trump is using an immoral tactic essentially to extort something he wants, but for which there is little support, for the sake of creating his legacy.  A government shutdown is immoral because it adversely affects people who have no role to play in the debate over the border wall.  Government employees risk falling behind in mortgage payments, utility bills and other bills because of a lack of a paycheck.  Some employees risk losing health insurance for dependents.

 

Yet, it is being viewed as simply just another tactic to get something out of Congress despite fierce resistance.  The last government shutdown, for example, was forced upon the United States by the Tea Party, who demanded the showdown over funding the Affordable Care Act.  Because the Tea Party saw that as a successful demonstration of its power, it has become just another arrow in the Republicans’ quiver.

 

It is particularly egregious where polls have shown that a majority of Americans oppose the border wall.  In fact, Trump clearly made tough immigration enforcement a hallmark of his message in the mid-term elections, which resulted in the Democrats taking control of the House of Representatives.  Yet, while Republicans like to point out that elections have consequences, they refuse to accept the consequences of losing the House, which include a lack of political support for the wall.

 

Trump has ignored all of this, just so he can push for the wall to have tangible proof of his legacy in American history.  The shutdown is a very selfish use of an immoral tactic for something that does not have strong public support.

 

Indeed, Trump’s mistake is that he has failed to learn from history.  There is strong and vocal support for the wall among hard core Trump supporters.  Trump has chosen to play to his base by projecting an image of being tough on immigration enforcement.  But, Trump engaged in the same tactic leading up to the mid-terms.  He used news coverage of a large group of Central Americans traveling together through Mexico in an attempt to apply for asylum in the United States to incite fear among his supporters of the caravan.  He labeled Democrats as soft on immigration enforcement and supporters of open borders.  In the end, his party lost the majority in the House, giving Democrats a power base upon which to oppose the President.  There is no reason to believe that playing to his base will be any more successful here.

 

As usual, Trump has made this dispute about him.  While he attempts to avoid responsibility now, claiming Democrats won’t give him what he wants, he can’t escape that the government shut-down has real world adverse consequences on people who have nothing to do with immigration policy.  Because Trump is such a wild card, there is no way of telling whether he will back down and attempt to paint it as a victory, or let the shut-down drag on and continue to cause widespread pain.  One can only hope that Trump can overcome his stubborn streak, agree to legislation to re-open the government, and continue to negotiate immigration reform without holding the welfare of government employees hostage.

 

By:  William J. Kovatch, Jr.

Trump’s “Remain in Mexico” Plan is Bad Policy Lacking Legal Authority

Confusion reigned over the weekend, as the Trump Administration announced it had reached a deal with the incoming Mexican Government concerning asylum seekers, only to have the incoming Mexican Government deny it. Under the alleged deal, labeled “Remain in Mexico,” Trump claimed that potential refugees from Central America could apply for asylum in the United States at ports of entry, but would remain Mexico until a final decision had been reached on the asylum application. 

Critics of the alleged deal claimed that it would leave the potential refugees in danger, as the Mexican border states are dominated by the Mexican cartels. The incoming Mexican Government noted that it was reluctant to permit Mexican territory to become a holding grounds for people seeking admission to the United States. 

Whatever the merits of the proposed plan, the question remains whether it is even legal under US law. Reading the US Immigration and Nationality Act as it pertains to asylum applications shows that it isn’t. 

Section 208 of the Act permits an individual to apply for asylum upon arrival to the United States. When an individual expresses an intent to apply for asylum, or a fear of persecution, Section 235(b)(1)(A)(ii) requires  immigration officials to refer the individual to an Asylum Officer for a credible fear interview. Pursuant to section 235(b)(1)(B)(ii), if the Asylum Officer determines that the individual does have a credible fear of persecution, that individual must them be detained by the US Government, for further consideration of the asylum application. Section 236(a) then gives the US Government the option to continue detention, or to release the individual, either on bond or under conditional parole.

Although Section 235(b)(2)(C) permits the Government to return a person arriving by land from a country contiguous to the United States back to that country pending removal proceedings, the language of the statute exempts aliens who are eligible for expedited removal from this provision. An alien without documentation or who attempts to enter based on fraud is eligible to be removed by an immigration official without placing that alien in formal removal proceedings. That is expedited removal. Almost all of the aliens arriving at the U.S.-Mexico border from Central America will be eligible for expedited removal.

This, pursuant to the statute, Congress only gave the Executive Branch two choices when it comes to a person applying for asylum at a port of entry. If the person passes the credible fear interview, the US Government can either detain that person, or release that person into the United States. There is no provision under US law to permit the Government to ship an asylum applicant off to another country while the United States considers the asylum application. Put simply, if a person shows up at a port along the Mexican border and claims fear, the United States cannot force that person to remain in Mexico until the asylum application reaches its conclusion. 

“Remain in Mexico” lacks legal authority. Moreover, it represents an attempt to push off on Mexico the responsibility of hosting Central American asylum seekers looking for protection in the United States. It is bad policy risking a deterioration of US relations with its southern neighbor. 

By: William J. Kovatch, Jr. 

The President Cannot Act Inconsistently with the Asylum Law as Written and Passed by Congress

US District Court Judge Jon S. Tiger issued a nationwide injunction preventing the Trump Administration from implementing a Presidential Proclamation wherein the President attempted to bar aliens who enter the United States through Mexico at a point other than an official port of entry from applying for asylum. “Whatever the scope of the President's authority,” the Judge expressed, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." Specifically, through the Proclamation, Trump directly contradicted the plain language of section 208(a)(1) of the Immigration and Nationality Act, which states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

In response, the Departments of Justice and Homeland Security issued a joint statement, arguing that the Supreme Court had ruled over the summer that the President had the authority to suspend entries of a class of aliens when the President finds that to be in the national interest. Moreover, asylum is a discretionary form of relief, and not an entitlement even if all of the legal requirements are met. 

The Departments of Justice and Homeland Security are being misleading.  It is true that the Supreme Court upheld President Trump’s travel ban finding that the President has broad discretion outside of the borders of the United States to suspend a class of aliens from entering the United States if the President finds it is in the national interest. This was done in the context of an Executive Order wherein the President found that certain countries did not provide sufficient information about their nationals to permit the United States to vet those individuals properly before allowing admission. Nationals from such countries were thus temporarily banned from entering the United States.  That is, the President took action that applied outside the United States, or at a port of entry before an individual became subject to US jurisdiction, to prevent that individual from physically and legally stepping foot on US soil. 

The situation is different with respect to those who enter the United States by crossing the border surreptitiously between official ports of entry. While theoretically, under the Supreme Court’s precedent, the President could suspend the legal entry of Hondurans or other Central Americans, that only prevents an individual from being admitted through of a port of entry after being inspected by a Customs and Border Patrol agent. For a person who is actually on US soil, whether that happened legally or illegally, the protections of the US Constitution and US law apply. At that point, the President’s power is far more restrained.  He cannot then act in direct contravention of a law passed by Congress. Put simply, outside the territory of the United States the President has broad discretion on immigration matters, but inside the United States he does not. 

With respect to the grant of asylum itself, it is true that section 208(b)(1)(A) does state that the Attorney General or Secretary of Homeland Security “may grant asylum” to an individual meeting the legal requirements. The use of the word “may” does make the grant of asylum discretionary. But what exactly does discretionary mean?  For one, the decision cannot be arbitrary and capricious. There has to be reason behind the decision. Discretion involves evaluating all of the facts and circumstances of a case, and fashioning a reasonable outcome. 

Thus, it is possible for an applicant to be denied asylum for breaking the law. But the fact that a person may have broken the law must be weighed against the level and severity of danger from which the applicant was attempting to escape. 

Discretion does not mean applying a blanket rule to all situations. Applying a rule that no one who enters the United States illegally, without weighing all of the circumstances in that person’s case, is an abuse of discretion. It leaves no choice to the decision-maker to craft a reasonable outcome. 

Moreover, the law provides a list of factors that disqualify a person from receiving asylum. These factors range from a conviction of a particularly serious offense to the individual being a danger to the security of the United States. In addition, the Attorney General may impose further restrictions by regulation. But, those limitations must be consistent with the law. Thus, an argument exists that a regulation cannot impose a limitation that is inconsistent with the statute as written, such as prohibiting a person who has entered the country illegally from applying for asylum. 

The President has been consistently attempting to broaden his authority over immigration matters. This stems from his frustration over members of his own party, who have controlled both houses of Congress since the beginning of his term, to pass immigration reform satisfactory to the President. With the Democrats ready to assume power in the House of Representatives, gridlock over immigration is likely to increase. This will only create more incentive for the President to attempt to grab more power through purely executive action. The courts will therefore remain a key institution to limit the President and uphold the doctrine of Separation of Powers. 

By: William J. Kovatch, Jr. 

What Could Happen Now That Migrants from the Latest Caravan are Arriving at the US-Mexico Border?

Some buses with potential refugees from Honduras arrived at the US-Mexican border on Tuesday. This marked the beginning of those from the now infamous caravan to arrive at the border. 

The question that arises now is what will happen to these migrants.

Many of the migrants will be claiming asylum. Asylum would permit the migrants to stay in the United States legally, with the possibility of applying for permanent residency and later citizenship. It is granted to people who show a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group. Many Central Americans are attempting to escape gang violence. Some are afraid of the new Honduran Government. Some women may be seeking protection from abusive domestic partners. 

Asylum is a legal immigration benefit. By law anyone present in the United States may apply for asylum, regardless of whether that person entered legally, or what that person’s immigration status is. 

For people making the dangerous trek northward, through Central America and Mexico to the United States, the Trump Administration wants them to apply for asylum in an orderly fashion, at legal ports of entry. Yet, the Administration has limited access to asylum procedures at ports of entry, reportedly to 100 applicants per port per day. With thousands of potential refugees already waiting in line to start the asylum application process, this could mean a wait of months or longer for those who just arrive at the Mexican side of the border. 

The alternative has been for Central American migrants to cross the border between ports of entry, surrender to an agent from Customs and Border Protection (CBP), and claim that they have a fear of returning to their home country. 

Once a person within the United States makes a claim of fear, CBP is supposed to stop the expedited removal process, and turn the migrants over to Immigration and Customs Enforcement (ICE) for detention and a credible fear interview. At a credible fear interview, an Asylum Officer will interview the migrant to test whether he or she has a credible claim for asylum. 

The Asylum Officer will also consider whether the person qualifies for two other humanitarian relief programs, called withholding of removal and protection pursuant to the Convention Against Torture (CAT). Both programs address aliens who believe their life and liberty may be in jeopardy if they were to return to their home country. Both programs have more stringent burdens of proof than asylum. Neither program leads to permanent residency or citizenship. But both permit the alien to remain in the United States if that alien qualifies. 

If it is determined that an alien does not qualify for asylum, which could be because of prior removals, criminal convictions, US security issues, or failing to apply for asylum within one year of entering the United States, but that alien still claims fear of returning to his or her home country, the Asylum Officer will conduct a reasonable fear interview instead of a credible fear interview. In a reasonable fear interview, the alien will only be considered for withholding of removal and protection pursuant to CAT.

If the Asylum Officer finds in favor of the alien in either a credible fear or reasonable fear interview, that alien will be referred to an Immigration Court to make their case. If the Asylum Officer does not decide in favor of the alien, the alien may request that an Immigration Judge review that decision. That review typically happens in an expedited fashion. 

There is a backlog of thousands of cases in the Immigration Courts. This means that it can take years for a case to be heard by an Immigration Judge. Keeping an alien detained while waiting for a hearing can be costly for the US Government. Often, a person with a favorable credible or reasonable fear interview result is released into the United States upon the posting of a bond. Failure to show up to Immigration Court results in a loss of the bond and an order of removal in absentia. This is what the Trump Administration calls “Catch and Release.”

Trump issued a Proclamation pursuant to newly released regulations that purports to disqualify any alien from applying for asylum if that person entered the United States from Mexico between legal ports of entry on or after November 9, 2018. The ACLU has challenged the regulations and the Proclamation as violating the plain language of the Immigration and Nationality Act, and for violating the Administrative Procedure Act, which sets the rules for how new regulations may be adopted. 

The Trump Administration’s hope was for the Proclamation to compel migrants from the latest caravan to wait at ports of entry, and not cross the border illegally. However, aliens who enter the United States after November 9th, and who express fear, are still entitled to a reasonable fear interview to be considered for withholding of removal and protection pursuant to CAT.  Regardless of the President’s Proclamation, if the alien goes before a judge, he or she can still argue that the Executive Branch cannot contradict the words of the statute. Therefore, the Proclamation and regulations are void, and the alien may still apply for asylum pursuant to section 208(a)(1) of the Immigration and Nationality Act despite entering illegally and not having a currently valid immigration status. 

By: William J. Kovatch, Jr. 

Trump Administration Adopts Asylum Regulation Directly Contrary to the Plain Language of the Statute

The Trump Administration has shown once again its disdain for the legal process of immigration, issuing a regulation directly contrary to the plain language of the Immigration and Nationality Act (INA). 

The specific issue concerns asylum. Asylum is legal protection granted by a country to people who have a reasonable fear of persecution in their home country based on race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum has the legal right to remain the United States, work and obtain a travel document. After one year, an asylee may apply for lawful permanent residence, which can lead to citizenship. 

The Department of Justice issued an interim final rule prohibiting anyone who enters the United States through the southern border with Mexico at anywhere other than an official port of entry from applying for asylum, effective after the President has made a Proclamation to that effect. Put simply, once the President issues his Proclamation, migrants who do not hold a visa must enter through an official port of entry in order to apply for asylum if they cross over from Mexico. Any alien who sneaks across the border will be barred from applying for asylum. 

But this contradicts the statute. The process of applying for asylum is governed by section 208 of the INA.  Section 208(a)(1) states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

The law, as passed by Congress, therefore guarantees the right to apply for asylum to any alien present in the United States, regardless of how that alien entered or what that alien’s legal immigration status is. That is, an alien who entered the United States by crossing the border without a legally valid visa, and at a place other than an official port of entry, may by law apply for asylum even if that alien has no legal immigration status in the United States.

The US law wherein Congress passed this provision was the Refugee Act of 1978. Through this law, Congress implemented US international obligations stemming from the Universal Declaration of Human Rights and the Protocol Relating to the Status of Refugees. The Protocol, in particular, prohibits a country from imposing a penalty on a refugee because that refugee either entered the country illegally or is present in the country illegally. 

A regulation is a rule issued by the Executive Branch implementing a statute passed by Congress. Regulations may interpret ambiguous language in a statute, or adopt policies pursuant to a statute where Congress has authorized the Executive Branch to adopt such policies. A regulation cannot contradict the plain language of the statute. 

In this instance, then, where Congress expressly provided that an alien present in the United States May apply for asylum regardless of whether that alien is present illegally or crossed the border illegally, a regulation cannot restrict the ability of aliens to apply for asylum only if they come through an official port of entry. With the regulation being directly contrary to the plain language of section 208(a)(1) of the INA, the Administration has no legal authority to adopt it. In the end, this restriction on the availability of asylum cannot withstand legal scrutiny. 

By:  William J. Kovatch, Jr.