On December 11, 2020, the U.S. Department of Homeland Security published new asylum regulations. The rules are expected to take effect on January 11, 2021, and they significantly change eligibility for asylum including discretionary factors and procedure for applying. The new rule is an overhaul of the entire asylum process and the Trump Administration’s final effort to restrict the asylum landscape in the U.S. for years to come.
Under the new rule, asylum claims regarding generalized harm, threats with no effort to carry them out, or even brief detention will not be considered “persecution”. In addition, cases where individuals were targeted for refusal to join gangs, based on perceived wealth, or even based upon private criminal acts where the government was unaware or uninvolved will not be favorably adjudicated.
In addition, the new rule changes the procedure for applying for asylum. The rule indicates that for those individuals filing applications before an Immigration Court, any particular social group not raised before the Immigration Judge will be waived for all subsequent proceedings including Motions to Reopen or Appeals. In addition, an Immigration Judge will be afforded the ability to pretermit, or dismiss an asylum application without a hearing if they feel that the application and supporting evidence does not meet the requirements for asylum.
Additionally, the new rule provides tighter restrictions on those individuals who may have firmly resettled in another country prior to entering the U.S. or those who may be able to relocate within their home countries. Specifically, if an individual received or could have received permanent status or non-permanent but indefinitely renewable status, they will be subject to the firm resettlement bar. Similarly, those who were present in a third country for more than one year prior to entering the U.S. and did not suffer persecution will be barred. Additionally, individuals who could have relocated within their home country to avoid the alleged persecution have always been barred from applying for asylum. However, the new rules provide factors to be considered when performing this analysis such as size of the country, geographic locus of alleged persecution, size and reach of the alleged persecutor, and applicant’s ability to relocate to the U.S.
Under the current law, an individual who files a frivolous asylum application is barred from receiving any immigration benefit. The new rule redefines the term “frivolous” to include not only false asylum claims but also applications that include fabricated evidence, those filed without regard to the merits of the claim, and even those claims that are foreclosed by applicable law.
Like many immigration applications, discretion plays an important role in the decision-making process. The new rule provides three significantly adverse factors including: (1) unlawful entry or attempted entry into the U.S.; (2) failure to apply for protection in at least one country through which the applicant traveled en route to the U.S.; and (3) use of fraudulent documents to enter the U.S. In addition the rule outlines nine discretionary factors that will result in a denial of the asylum application unless there is a showing of extraordinary circumstances, or exceptional and extremely unusual hardship. These factors include: (1) spending 14+ days in a third country while en route to the U.S.; (2) traveling through more than one country en route to the U.S.; (3) criminal convictions that would have triggered a bar to asylum even if they are ultimately vacated, reversed or expunged; (4) accruing more than one year of unlawful presence; (5) failure to comply with tax obligations; (6) having 2+ asylum applications denied for any reason; (7) withdrawing or abandoning prior asylum applications; (8) failing to attend asylum interview; (9) moving to reopen based upon changed country conditions that occurred more than o