Closing the Door on Asylum

[July 9, 2020] A brother and sister, aged twenty-seven and twenty-five, fled gang violence in El Salvador. They had refused to submit to threats by the gang Barrio 18 and made it to the United States. 

In February, the pair’s lawyer, Jasmin Tohidi, convinced an immigration judge in Arlington, Virginia, that their resistance to the gang was a political act deserving of protection under asylum law.

But under changes in asylum regulations proposed by the Trump Administration, Tohidi notes, this avenue to asylum would be closed. The Salvadorans would be deported because they could no longer  claim that standing up to a gang resulted in persecution.

These sweeping changes are outlined by the Justice Department and Department of Homeland Security  in a 161-page document that was unveiled last month, with a public comment period that ends on July 15.

Although the proposal’s architects say they are just trying to streamline existing asylum rules, they are, in fact, advocating for a host of oppressive new restrictions. The various changes would leave victims of gang and domestic violence without a legal route for asylum.

“It’s part of the pattern and practice of this administration trying to get rid of people of color in this country,” says San Francisco-based lawyer Marc Van Der Hout, a veteran of immigration struggles.

The Trump Administration does not need Congressional approval for its asylum overhaul. The immigrant rights community is calling for public comment, worried that the regulations will be finalized before the November elections.

“They are essentially attempting to do by regulations what they haven’t been able to do in Congress and the courts. And that’s eliminate asylum protections,” says Heather Axford, legal director of Central American Legal Assistance in Brooklyn, New York.

With the Trump Administration having already indefinitely closed the borders to asylum seekers, the immigrants most impacted by the new asylum rules would be the more than a half-million people who currently have asylum applications in U.S. immigration courts and over three hundred thousand whose applications are being reviewed by immigration officials outside the court system.

The new regulations set up another roadblock to undocumented immigrants who try—often without a lawyer—to navigate an asylum system in shambles due to Trump’s war on immigrants.

“What the regulations do is essentially look at every way cases have been won over the last three years and say, ‘This no longer qualifies,’ ” says Victoria Neilson, a managing lawyer with the Catholic Legal Immigration Network.

The new rules would encourage immigration judges, who are already under pressure to meet case completion quotas, to decide cases without even holding a hearing. This would break with the longstanding practice of airing asylum claims. The regulations give judges a variety of reasons for dismissing a case.

“The judge could just look at your application and say you haven’t met a threshold to hold a hearing. Get rid of you. No hearing,” says Tohidi. “That’s their solution to the backlog.”

At present, the immigration courts in the United States have a backlog of 1,191,028 cases.

Amelia McGowan, Immigration Campaign Director for the Mississippi Center for Justice, says the changes will rob applicants of a fair shot at asylum.

“You lose the opportunity to develop your case,” she says. “There are so many points you have to prove. It’s hard to prove that on a simple asylum application, especially if you do it on your own.” 

And she says, “Without a hearing, it will be pretty common that the government will send people to their death just because they didn’t sufficiently fill out their application.”

The proposed regulations read like a roadmap to how the Trump Administration wants immigration judges to rule. These judges, supervised by the Justice Department, would be more likely to read asylum law in a more restrictive way.

The Refugee Act of 1980 provides asylum for those with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Seeking a limit to this law’s reach, the regulations claim to clarify differing interpretations by declaring that “persecution is an extreme concept of a severe level of harm.

The regulations also ignore existing court rulings. A federal appeals court has previously ruled that standing up to gangs should be considered as “political opinion.”

“Gangs act as a governmental entity,” Tohidi says. “They set curfews. They levy taxes—essentially extortion against businesses. They watch who comes into an area. They resolve personal disputes. You can use them for enforcement.”

The proposed regulations would also not recognize “gender” as a cause of persecution. “They are basically saying that it doesn’t matter that somebody wants to kill you because you are a woman, or wants to rape you because you are a woman,” says Neilson. Victims of persecution based on sexual orientation would encounter similar barriers to asylum.

“The rule rewrites court precedent and narrowly defines persecution to exclude from consideration instances where LGBTQ/H people are repeatedly threatened with harm, but the harm has not been carried out,” as Immigration Equality, an immigrant rights organization, highlighted in its analysis of the regulations.


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James Goodman