Trump Administration Pushes Last Minute Changes to Immigration Policies
One of the hallmarks of the Trump presidency has been a concerted effort to dismantle and destroy the rules, regulations, and procedures surrounding the immigration and asylum process in this country. By some estimates, the Trump administration is responsible for more than 400 changes to immigration practice and policy. Now, as Trump’s term comes to an end, the administration is pushing through a number of significant changes to the immigration process that could have devastating consequences for the most vulnerable members of the migrant population.
The three major areas of change outlined below range from fee increases that can create barriers to accessing justice and relief to changes in what types of cases and claims are eligible for asylum and relief. Viewed in a cumulative manner, these changes could have a drastic impact on the future of immigration in our country.
While incoming President Joe Biden has promised to restore many protections for immigrants, his administration may face a lengthy process with respect to rule changes. According to Leon Fresco, an immigration attorney sitting on a U.S. Department of Homeland Security advisory board, restoring the damage may take time. “The majority of the Trump administration immigration reforms will be difficult to address immediately either because of legal rule-making barriers, practical realities on the ground or a lack of bandwidth given how many priorities the Biden administration has in contrast to the singular focus on immigration the Trump immigration had,” he told Politico in a November interview.
Here is a summary of recent rule changes and their potential impact on our immigration system.
Changes to Fees & Work Authorization
One of the primary methods that the Trump administration has employed is attacking those seeking immigration benefits or humanitarian relief by placing additional burdens or barriers on them and their families. Recent rule changes with respect to application filing fees and work authorization appear to be a continuation of this strategy.
Filing Fees in Immigration Court
A significant set of changes is set to take place with respect to filing fees related to applications and forms in immigration court. As a result, immigrants in court will have to pay increased fees to appeal decisions, reopen a case based on new evidence, or have a decision reconsidered based on an error. Individuals may still be able to ask for fee waivers for certain fees; however, the changes serve as a significant barrier for individuals seeking to access immigration relief and will be particularly burdensome for individuals with limited resources. The changes include tripling the cost to apply for cancellation of removal, and fees for appeals to the Board of Immigration Appeals (BIA) - which reviews immigration court decisions -will be nearly nine times higher than previous levels. The rule also requires that asylum applicants pay a fee to seek that form of relief for the first time in this nation's history.
Immigrants’ rights organizations have already filed a lawsuit to oppose the fees, arguing that they serve as a kind of ‘wealth test’ for individuals seeking relief.
The changes to fees are scheduled to take place on January 18th and will apply to certain applications, appeals, and motions submitted to immigration courts or the BIA. Find a complete list of forms and fees here.
Work Authorization Rule
In addition to fee increases, the Trump administration is taking draconian measures to prevent immigrants who are on supervised release from immigration custody from working. The proposed rule would eliminate employment authorization eligibility for any immigrant who has a final order of removal in their record but has been temporarily released from detention. Historically, individuals who had been released under supervision would be allowed to work and often explore various avenues to re-open their cases or seek alternative relief.
Advocates have noted that the rule change would harm individuals who are already vulnerable and often lack financial resources or support. An estimated 17,000 individuals may be impacted by the rule, leaving them unable to work or support their families. A large number of organizations and individuals have expressed concern over the rule, and more than a dozen state Attorney Generals have also provided comments opposing the rule change.
ILD, along with the American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA), expressed their concern over the rule change in a letter to USCIS, noting: “The proposed rule would have a profoundly cruel impact on individuals who would no longer be eligible for work authorization. They will lose the ability to support themselves and their family members, making it harder to pay for basics like food, shelter, and healthcare. Families – including U.S. citizen spouses and children – will have no other means to support themselves in homes where that individual is the primary wage earner.”
Changes to Immigration Court Procedures
In addition to barriers imposed on immigration applications and processes, the Trump administration has sought to change the practice and procedure in immigration court, where many individuals facing deportation must appear in order to apply for relief. Some of the changes include how certain cases are treated when they are before the court.
The new rules remove procedural protections in what appears to be an attempt to speed up the processing of cases and appeals. The rule removes the ability of the Executive Office for Immigration Review (EOIR), more commonly known as the immigration court, to exercise certain forms of discretion on cases and prevents individuals from pursuing certain types of relief through the appeals process.
The rule, set to take effect on January 15, 2021, makes numerous changes to the process of appealing immigration court decisions, including reducing the time that the (BIA) is allowed to grant in the form of an extension to individuals filing briefs to support their case, preventing immigration court and BIA judges from using administrative closure to close certain cases and manage their caseloads, and undermining the ability of volunteer or pro bono attorneys to take on representation.
The American Immigration Council, a non-profit that supports immigrants’ rights, submitted a comment vehemently opposing the rule change:
“Throughout the rule, the Department of Justice (Department) removes procedural protection after procedural protection, emphasizing a perceived need to speed appeals and prevent “gamesmanship.” However, procedural protections like adequate time to brief issues raised by opposing counsel, the ability for adjudicators to reopen cases in the interest of justice, and maintenance of impartiality are key to ensuring both sides have a fair chance to be heard. What the Department refers to as gamesmanship is instead merely a normal, fair appeals process – meant to allow judges to pull out the relevant issues and facts, hear arguments, and decide what justice demands. The Department should withdraw the proposed rule.”
Changes to the Immigration Court Practice Manual
In addition to these rule changes, the Office of the Chief Immigration Judge (OCIJ) recently updated the Immigration Court Practice Manual, which sets guidelines and practice procedures for the court, with a number of key changes. The changes made to the manual on December 23, 2020, appear to mirror the spirit of other changes to immigration courts that appear to focus on expediting cases. This includes changing the filing deadline for non-detained individuals appearing for a full merits hearing before the court from 15 days to 30 days before the hearing date. This would effectively mean less time for preparation before individuals appear before the court for what will often be their final hearing before their case is decided.
The Death to Asylum
One of the most devastating blows to immigration law has been the comprehensive changes made by the Trump administration to asylum. Previously scheduled to go into effect January 11, 2021, in what many advocates have called the “death to asylum” rule, the changes create seemingly insurmountable barriers for refugees and asylees. The rule changes, pushed through in the final months of the Trump administration, would further exacerbate the humanitarian crisis related to those seeking asylum in the United States.
The rule was first proposed in the summer of 2020 and received more than 87,000 public comments. Despite widespread outcry over the proposed change, the rule itself went forward largely unchanged and was set to go into effect this month.
Immigration advocacy organizations filed legal challenges to block the rule. On January 8, 2021, the U.S. District Court for the Northern District of California prevented the rule from going into effect by ordering a nationwide injunction.
The plaintiffs in the case, which included numerous organizations that represent asylum seekers, centered their arguments against the rule on the fact that acting Homeland Security Secretary Chad Wolf was improperly acting in his current role and lacked authority to impose the sweeping rules. Similar legal challenges in other courts have held that Wolf was, in fact, not properly appointed to his position, and the court in this case agreed.
“The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts,” wrote Judge James Donato in his legal decision. “This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping it might break through someday.”
Read the full decision on the case here.
Proposed Rules
Advocates have argued these changes would severely restrict the ability of asylum seekers to obtain relief in the United States and would undermine international norms and protections related to asylum.
In a statement, Human Rights First slammed the changes and noted the impact they would have on vulnerable asylum seekers. “Provisions in the rule finalized today create draconian procedural barriers for asylum seekers and are likely to have a disproportionate impact on refugees who are unrepresented, detained, or do not speak English.” Benjamin Johnson, the Executive Director of the American Immigration Lawyers Association (AILA), noted, “This new rule raises the bar for asylum screenings and eventual long-term relief so impossibly high that it effectively shutters the U.S. asylum system.”
In particular, advocates have noted that the rule can have devastating consequences for three groups: Central Americans fleeing persecution from gangs, individuals fleeing domestic violence, and those fleeing harm or persecution based on their sexual orientation or gender identity.
This is because the rule changes who can be granted asylum based on their membership in a “particular social group”, essentially limiting those who can qualify for protection to those who are members of the four traditional categories of race, religion, nationality and political opinion. Excluded from this are individuals who may be part of a “particular social group” constituted by either their gender or sexual orientation, for example, women who are coerced into marriage or LGBT individuals who may have been harmed because of their sexual orientation.
The rule also would limit the ability of anyone associated with a criminal entity to receive asylum; this includes individuals who may have been coerced into joining violent groups or gangs for their own protection before fleeing to the United States to seek refuge.
The rule also changes the eligibility of those seeking asylum as a result of their political opinion, requiring that an individual’s political opinion be tied to “a discrete cause related to political control of a state.” Thus, individuals who may have advocated broadly for human rights or freedom of speech issues may not qualify – unless their political opinion was directly opposed to those who are in control of the government.
Some of the additional notable changes to the law include:
Giving asylum seekers only 15 days from their first court hearing to complete and file their asylum applications. This timeframe is particularly challenging for both individuals and their attorneys, as they often spend weeks gathering evidence and exploring difficult topics and memories as they prepare their asylum applications. It is particularly challenging for the preparation of a case when interpreters are involved.
The automatic denial of asylum applications that have minor or trivial errors if the asylum seeker does not refile their application within 30 days.
Diminishing the reliance on human rights reports and evidence that was not created by the U.S. government as evidence of particular circumstances or conditions in a country. In addition to this, immigration judges are now encouraged to submit their own evidence as the basis for making a particular ruling or decision. Taken together, this effectively gives the U.S. Government and immigration judges greater control in framing the perceived human rights conditions in a particular country.
Placing a 180-day deadline for the completion of asylum cases and imposing a high threshold to qualify for any form of extension beyond this time limit.