Recently, the Trump administration and the Department of Homeland Security (DHS) proposed new regulations that makes matters more challenging for asylum seekers. The document is open for public comment until July 15, 2020. The Trump administration must consider all comments before finalizing. Legal challenges to these rules are also expected.
The proposed rules are designed to severely limit asylum by barring relief for several seekers based on stricter definitions of asylum and limiting factors, such as living in the United States illegally, not paying taxes, or passing through other countries before entering the U.S. The new regulations also create restrictions on asylum eligibility.
Importance of the Refugee Act
These regulations strike a blow to a long-held American policy that offers refuge to the persecuted and oppressed around the world. In 1980, the Refugee Act was a response to the urgent needs of persons subjected to persecution in their homelands. The Refugee Act includes humanitarian assistance; aid for care, maintenance, and transportation; and transitional assistance.
Who is Eligible for Asylum?
Under the current law, a refugee is unwilling or unable to return to his or her homeland due to fear of prosecution due to race, ethnicity, membership in a social group, political opinion, religion, or national origin. The definition was adapted from the United Nations 1951 Convention and 1967 Protocols related to the Status of Refugees, which the U.S. became a member in 1968, and later adapted into the Refugee Act of 1980. Under current law, in order to qualify for refugee status, asylum seekers need to satisfy the following standards:
- Must fear persecution
- The fear must be well-founded
- The fear of persecution must be based on the asylum seeker’s race, religion, nationality, or membership in a group with a particular political opinion or social group
- The person must be unwilling or unable to return to his or her home country or the country in which the person last resided for fear of such persecution
The recently proposed rules create more issues for those fleeing persecution, violence, and who are desperately seeking refuge in the U.S. Asylum seekers have already faced family separation and metering where they are turned away from ports of entry.
What are the Proposed Rules?
The proposed rules aim to undermine the current asylum laws by doing the following:
- Limiting who may enter the U.S. to apply for asylum
- Limiting who can make a case before a judge for asylum
- Limiting eligibility by declaring claims based on gender, domestic, and gang violence
- Defining credible fear of persecution more strictly to require extreme and severe levels of persecution
All of these rules make the asylum process more difficult for those who are not able to secure a visa.
The proposed rules redefine persecution as an extreme concept. This level of persecution does not include harm that arises from general, civil, criminal, or military strife in a country of unfair, unjust, offensive, or even unlawful treatment. By defining persecution narrowly and eliminating other definitions, the proposed rules create severe hurdles to current asylum seekers.
Rules Affecting Adjudication
The proposed rules also allow a judge to refuse to hear a case if it does not meet prima facie definitions of eligibility without a hearing. This rule can severely affect due process rights of the asylum seeker. Judges are also required to consider negative factors to deny asylum, including illegal border crossing, failure to pay taxes, working illegally in the U.S., and usage of fraudulent documents. Also, judges will have to account for other factors, such as travel to the U.S. from other countries, living in the U.S. illegally, and having criminal records.
How are Women of Domestic Violence or LGBTQ Members Affected?
Women will no longer be able to seek asylum based on fear of domestic violence. The new rules also prevent those fleeing persecution based on their sexual orientation or violence due to their status as members of the LGBTQ communities. Due to the stricter definition of persecution, those previously able to seek asylum based on these categories will no longer be able to seek refuge in the U.S.
Department of Homeland Security Officers May Deem Applications Frivolous
The new rules will give the DHS authority to find an application frivolous, thus barring the applicant from presenting his or her case to a judge and the Board of Immigration Appeals. According to the current rules, only a judge and the Board of Immigration Appeals can find an application frivolous. The new rule will give broad authority to the DHS and severely inhibit the due process rights of asylum seekers.
Who Else is Affected by the Proposed Rules?
The rules also eliminate protection for persons who have been tortured or physically and mentally abused by the police or military. Persons who fear persecution by gangs and terrorists may no longer be eligible to seek asylum. Also, those who have been compulsorily enlisted into a terrorist organization may no longer be eligible. Additionally, the proposed rules create hurdles for those who are in expedited removal proceedings. These rules affect the application to withhold removal if the existing changes affect asylum eligibility.
Legal Representation for Asylum
While the path to asylum has never been easy, the proposed rules make the asylum process even more complicated. Not only does one need to be cognizant of strict deadlines and proper filing of paperwork, but the ever-changing rules and proposals of the current administration also require constant vigilance. Asylum protection can offer many benefits. If an asylum seeker has concerns, it is advisable to seek immediate legal representation.
Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Help Those Seeking Asylum
Our Philadelphia immigration lawyers at Surin & Griffin, P.C. have several years of experience and are knowledgeable about the current laws. We provide comprehensive legal representation in all immigration matters, including your application for asylum. Call us at 215-925-4435 or contact us online for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and nationwide.