Comments Needed to Oppose Rule Eviscerating Asylum in the U.S.

Comments are needed by midnight on July 15, 2020 to oppose proposed regulations that would all but gut long-standing U.S. asylum law.

Maine has more than 6000 asylum seekers who are our neighbors, friends, college students, coworkers, caregivers, essential workers, and who pay taxes and contribute to keeping our population, our communities, and our workforce vibrant.   Virtually all of these individuals would likely lose their cases and have to leave the U.S., even if the facts of their cases merit asylum under current law, if these proposed rule changes were to take effect.

In the Refugee Act of 1980, Congress enshrined the right of those fleeing past or feared future persecution to apply for protection in the U.S. regardless of how they enter the country.  This legislation also brought U.S. law in line with the nation’s obligations under international law.

The administration has made no secret of its disdain for the country’s asylum laws, eroding their protections through various measures taken on the southern border to dissuade people fleeing persecution from seeking safety in the U.S., and to lead to more asylum denials for those who persist in exercising their legal right to apply.  These measures include, among others, increased use of detention, separating asylum seeking parents from their children, forcing asylum seekers to wait for their hearings in dangerous conditions in Mexico, and since March 2020, using the COVID-19 pandemic as an excuse to do away with any semblance of due process and simply forcing asylum seekers back into Mexico with no possibility of claiming asylum at all.

Now, the administration proposes to rewrite the asylum regulations comprehensively to essentially eradicate asylum in the U.S.   The proposed regulation, discussed in more detail here, would cause virtually all asylum seekers, both the hundreds of thousands already here whose cases have been pending for years, and those applying in the future, to be denied asylum.  The administration’s attempt to overhaul the asylum laws by regulation is a bald end-run around Congress, which, under the Constitution, is the only body authorized to rewrite U.S. asylum law.

These regulations should be vigorously opposed. Public comments are being accepted through July 15, 2020.    You can submit your comment opposing the rule and asking that it be withdrawn in its entirety through this comment portal.

Here are some talking points you could add to your comment:

    • The proposed rule unfairly moves the goalposts for gaining asylum for those who already are in the middle of the process.  The rule states that currently there are over 866,000 pending asylum claims.   The proposed changes, if finalized, would apply to them and would turn what might have been winnable claims into cases that will be denied.
    • The proposed rule makes whole categories of people ineligible for asylum, violating U.S. and international law that their individual facts be fairly considered.   The rule would make those who feared forced recruitment by, or retaliation for failure to aid gangs, guerillas or terrorist groups categorically ineligible for asylum.  Likewise, a person whose claim is based on gender, such as a woman whose government turns a blind eye to domestic violence, or those fearing harm due to their sexual orientation or gender identity, would be categorically ineligible.   Asylum seekers must have the right to have their individual cases fully and fairly considered.  Creating whole categories of asylum seekers whose cases should not be granted deprives individual asylum seekers of a meaningful chance to have their cases heard fairly, and may result in them being returned to harm and even death in violation of U.S. asylum statutes and international law.
    • The proposed rule creates unprecedented barriers to gaining asylum, even for those who credibly make the case that they have been persecuted in the past or have a well-founded fear of future persecution.  The proposed rule says that except in the most exceptional of circumstances, immigration asylum officers and immigration judges should deny asylum to anyone who transited through more than one country on the way to the U.S. (even if only to change planes), or who spent more than two weeks in a third country, among other new categorical reasons to deny asylum.  The proposed rule also says that having entered or tried to enter the U.S. without a visa – such as the vast majority of asylum seekers coming to the U.S. via the southern border, or having used a fraudulent document to escape one’s country and enter the U.S., unless arriving in the U.S. on a direct flight, should lead to a discretionary denial of asylum, even if the asylum seeker’s claim is believed and considered by the adjudicator to be a strong one.   These provisions contradict U.S. and international law allowing people to seek protection from persecution regardless of how they enter the country.   The proposed rule also turns the term “discretion” on its head, by directing adjudicators’ decisions, rather than allowing them to weigh all the facts on a case-by-case basis.
    • The proposed rule allows immigration judges to deny asylum seekers’ cases without a hearing .   Immigration court data shows that nearly  65% of individuals do not have a lawyer when they initially file their cases in the court.  Asylum is an extremely complicated area of the law, and a person without a lawyer is unlikely to know all the information that should be included in her/his application without a lawyer’s help.   Data shows individuals with lawyers in fact are far more likely to win their cases than people without a lawyer.    Giving judges the ability to deny an asylum application without providing an unrepresented asylum seeker a chance to more fully explain in a hearing what may not have been adequately described in the application deprives the asylum seeker  of due process, and may result in sending the asylum seeker back to harm or even death.
    • The proposed rule makes  numerous changes that are inconsistent with the U.S. asylum statutes and international law, and with due process and fairness.    Among others, the rule would raise the burden of proof on asylum seekers in “expedited removal” proceedings who are typically unrepresented by lawyers, putting them at risk of being returned to harm or death without a fair chance to request protection.  It would change the definitions of  what is persecution and torture.  It would deny asylum seekers who apply after being in the U.S. for more than one year, despite Congress allowing such applications in some cases.  It would put many asylum seekers in “asylum only” proceedings, denying them the possibility of applying for other forms of immigration relief for which they are or may with time become eligible.   And it would increase the chances of having an asylum application filed by an unrepresented asylum seeker deemed “frivolous,” with the consequence of  being unable to ever get approved for legal status under any other part of the U.S. immigration laws, simply because the person doesn’t fully know the legal standards for asylum.

The proposed rule should be withdrawn in its entirety.

The comment portal to submit a comment opposing this proposed rule before midnight on July 15th is here.    Please contact MeBIC if you’d like assistance to submit your comment. 

NOTE:    The U.S. Supreme Court ruled on June 25, 2020 that arriving immigrants who seek asylum in “expedited removal” proceedings – including virtually all asylum seekers arriving without visas via the southern border  – cannot get judicial review of a negative “credible fear” decision preventing them from applying for asylum.    The proposed rule discussed above would make it much harder than under present law to pass a “credible fear” review, and this Supreme Court ruling denying judicial review makes it even more critical to oppose the proposed rule’s reductions in due process.