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Proposed Asylum Rule Will Severely Limit Eligibility

By immigrationprof

Guest blogger: Michaela Sanchez, law student, University of San Francisco:

The Department of Justice (DOJ) proposed to amend an Executive Office of Immigration Review (EOIR) rule on September 23, 2020 that once again aims to deny detained and non-detained asylum seekers their right to seek asylum and withholding of removal through new technicalities that would be incredibly difficult to overcome, even with experienced representation. The proposed rule can be found here.

The proposed new rule would:

  • Add a 15-day deadline from the dates of the individual’s first hearing with the Immigration Judge to file an application of asylum and withholding of removal for those individuals in asylum and withholding only proceedings with supporting evidence.
  • Automatically deny asylum applications that are “incomplete” (for minor errors such as leaving a field blank instead of filling each box with N/A for fields that do not apply) if the application is not resubmitted within 30-days.
  • Requesting a continuance beyond the 180-day deadline of adjudication will only be approved if the individual can show “good cause” and have “exceptional circumstances”.
  • No longer recognized external materials such as non-governmental organizations and news media and only sources that are “credible” and “probative” and allow the Immigration Judge to submit evidence into the record.

The amount of time it takes for an asylum seeker to submit an application, gather the appropriate documentation, and to work on a declaration with an attorney takes weeks. This new rule would all but ensure that attorneys would be extremely limited in the amount of cases they are able represent because of the new filing deadline and it would be even harder for an asylum seeker to meet this deadline if detained as access to counsel and resources is extremely limited. This will result in many more asylum seekers being ordered removed because of a technicality, and not because their claim was properly adjudicated.

Asylum seekers will need to meet impossible requirements to show the have “good cause” and “exceptional circumstances” if they try to request a continuance for any reason. These reasons normally include more time to find an attorney, gather additional documents, to attend to a medical issue or emergency, or to await adjudication of a USCIS application. If the asylum seeker is represented, this new rule does not leave room for attorneys to help their clients secure documentation that could be crucial to their claim.

Finally, the limitation of not being able to submit non-governmental or news media sources to support asylum applications will lead to immigration courts denying asylum claims based on only U.S. government evidence, which is extremely limited and many times not a full representation of country specific conditions. Non-governmental organizations and news media conduct unbiased investigations and research. They are usually more informative as to what actually occurs inside countries outside of the United States, to not consider these sources would preclude information that is integral to a judge’s decision.

The proposed new rule is open for public comments until October 23, 2020 but currently, there are only 277 comments. [1] This is a stark contrast from the amount of comments DHS received on the proposed rule for Inadmissibility on Public Charge Grounds, which had 226,000 public comments.[2] If the proposed rule does not receive more comments before the deadline, most likely these changes will go into effect.  

Immigration attorneys, advocates, and other organizations should submit public comments as soon as possible so that DOJ gives full consideration to how these rules will affect asylum seekers.  The Catholic Immigrant Legal Network, Inc. (CLINIC) has provided a template in order to assist in submitting comments. You can find the template here.

 

[1] https://beta.regulations.gov/document/EOIR-2020-0005-0001/comment (last visited, Oct. 12, 2020).

[2]   See Final Rule on Public Charge Ground of Inadmissibility, https://www.uscis.gov/archive/final-rule-on-public-charge-ground-of-inadmissibility#:~:text=DHS%20received%20and%20considered%20over,to%20all%20significant%20public%20comments (last visited, Oct. 12, 2020)

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