Read More: Trump vs. Biden on Immigration Policy
- The Trump administration has implemented a number of administrative actions to plug what it deems the asylum "loophole" — which, it contends, has encouraged migrants to enter the United States illegally and make fraudulent or meritless asylum claims.
- Among those actions have been "Remain in Mexico" or "MPP", the third-country transit bar, and a series of agreements by which our regional partners will accept third-country nationals seeking asylum in the United States to apply for protection, instead, in those countries.
- MPP and the third-country transit bar have both been subject to injunctions, which have been stayed by the Supreme Court. The Court has recently agreed to hear arguments on MPP.
- In his campaign documents, Biden has openly opposed these Trump administrative actions, and vowed to end them. He has, however, asserted that he will work with regional partners to provide protection to aliens fearing persecution — both in their home countries and abroad — but the specifics of that plan are extremely vague.
- In addition, then-Trump Attorney General Jeff Sessions issued a decision clarifying the standards for determining whether aliens who claim to have been subject to criminal activity in their home countries — including domestic and gang violence — are members of a "particular social group", and therefore eligible for asylum. DHS and DOJ have proposed regulations that, among other things, would codify those standards.
- Biden has implicitly but vociferously criticized Sessions' decision and the proposed regulations codifying it, and asserted that he will reverse those standards. Whether he will expand asylum eligibility beyond the standards that existed prior to that decision remains to be seen, but a Biden administration would likely make aliens who claim that they are fleeing gang and domestic violence eligible for asylum — increasing the number of asylum grants, and therefore the incentives for foreign nationals to enter illegally and claim credible fear.
- Finally, Biden states that he would institute policies that would give foreign nationals entering this country illegally and claiming credible fear expanded opportunities to file asylum claims — regardless of their validity. This, again, will encourage other foreign nationals to enter the United States illegally.
In advance of the November 3 general election, I am comparing the respective immigration positions of former Vice President Joe Biden and President Donald Trump. One significant area of disagreement — and vitriol — is on the issue of asylum.
The current administration has a robust record in clarifying — and to some significant degree amending — the rules for obtaining and the standards for receiving asylum, but Biden's proposals in response are rather vague. That does not mean, however, that Biden is not likely to make some significant changes that could encourage a large number of migrants to enter illegally and claim protection. Rather, the former vice president's proposals are in many ways a sea change.
Those proposals are contained in two separate documents from the Biden campaign, "The Biden Plan for Securing our Values as a Nation of Immigrants" (which features prominently on the candidate's website) and the "Biden-Sanders Unity Task Force Recommendations".
Trump's asylum policy has largely been set out in a series of decisions that the attorney general (AG) has issued using his certification authority, as well as regulations that have been issued by the Department of Justice (DOJ) and the Department of Homeland Security (DHS), either individually or in tandem, as well as other policy documents.
Statutory Standards for Asylum
Under section 208(b)(1) of the Immigration and Nationality Act (INA), an alien may be granted asylum if the alien has applied for asylum, and if the AG or DHS determines that the applicant is a "refugee" as that term is defined in section 101(a)(42)(A) of the INA. Under section 208(b)(1)(B)(i) of the INA:
To establish that the applicant is a refugee within the meaning of [section 101(a)(42)(A) of the INA], the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
The burden, by statute, is on applicants to show that they are eligible for asylum. As an (important) aside, not all harm constitutes "persecution". Rather, as the Ninth Circuit has held, "[p]ersecution is an extreme concept", which does not include, for example, simple discrimination.
The Five Protected Factors and "One Central Reason"
The five factors listed above are known as the "protected factors", and to be granted asylum, an alien is required by statute to show that one or more "was or will be at least one central reason" for harm that was inflicted, or is likely to be inflicted, on the applicant in order for the applicant to be granted asylum. In asylum law, this is known as "nexus", and the applicant must show a nexus between the harm suffered or feared and the protected factor.
Three of those five protected factors (race, religion, and nationality) are straightforward, one (political opinion) is slightly less so, and the last (membership in a particular social group) is extremely vague. Put differently, you belong to a race, practice a religion, or have a nationality, or you don't, by definition. What constitutes a political opinion is a matter of definition — membership in a political party plainly is, but otherwise ambiguous activity (such as opposing a terrorist group with a political agenda without participating in any organized political activities) has also been found to constitute a "political opinion".
I will discuss these issues further below, but before I continue, it is important to note the deleterious effects of our current asylum system as they relate to the current enforcement of our immigration laws.
Issues With the Current Asylum System
An alien present in the United States who entered illegally, overstayed a nonimmigrant visa, or is removable on a ground that is not a bar to asylum may apply for "affirmative asylum" before an asylum officer (AO) in U.S. Citizenship and Immigration Services (USCIS).
If USCIS does not grant the applicant asylum, it can deny the application, or refer the alien to removal proceedings with an immigration judge (IJ) in DOJ's Executive Office for Immigration Review (EOIR) to reapply for asylum. An alien who is placed into removal proceedings may also file a defensive asylum application as relief from removal.
Aliens who enter the United States illegally or seek entry at the ports without proper documents are subject to "expedited removal" under section 235(b) of the INA, meaning that DHS can remove them without placing them in removal proceedings before an IJ. If those aliens claim a fear of return, however, they will be referred to an AO for a "credible fear" assessment. "Credible fear" is a much lower standard than the "well-founded fear" standard for asylum protection. A positive credible fear finding means the alien may then apply for asylum.
Pending asylum claims have swamped both USCIS and the immigration courts. As of January 1, 2020, there were 338,931 applications for asylum and withholding of removal (a complementary form of protection) pending, with an estimated 1,000 AOs (up from 500 a year before) in USCIS. Between FY 2009 and the second quarter of FY 2018, the USCIS grant rate varied widely, from 46 percent to 28 percent.
Similarly, as of April 24, 2020, there were 527,927 cases pending with an asylum application before the nation's 500-plus IJs and the Board of Immigration Appeals ("BIA", which is also within EOIR). Between FY 2008 and the third quarter of FY 2020, the IJ grant rate varied from 31.35 percent to 15.8 percent, with an average in the low-20 percent range.
In addition to the fact that credible-fear cases add to both AO and IJ caseloads, the low credible fear standard threatens to undermine the expedited removal process. In FY 2019, U.S. Customs and Border Protection (CBP) apprehended 977,509 aliens entering illegally or without proper documents at the ports of entry along the Southwest border. Each of those aliens would have been subject to expedited removal. In that fiscal year, USCIS received 105,439 new credible fear claims (adjudicating 102,204).
The vast majority of aliens who claim credible fear receive positive determinations from USCIS, despite the fact that few end up being granted asylum. According to EOIR, between FY 2008 and the fourth quarter of FY 2019, 83 percent of aliens who claimed credible fear were referred to the immigration courts to make credible fear claims, but only 14 percent were ultimately granted asylum.
In fact, only 45 percent ever actually applied for asylum, and 23 percent were ordered removed in absentia, that is, because they failed to show up for their removal proceedings.
Trump Administration's Position on Asylum Generally
Not surprisingly, in light of the foregoing, the Trump administration has publicly stated that the asylum system is being abused. In fact, the president has stated: "The biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country."
The current administration has proposed fixes to close that "loophole", but those are not the only steps that have been taken by the administration in the last four years relating to asylum. One major clarification of the law — which has been particularly attacked by the Biden campaign — involves the definition of "particular social group" for purposes of asylum protection.
Evolution of "Particular Social Group"
It is fairly unexceptional to assert that what constitutes a "particular social group" is vague. Neither the international agreements that undergird our asylum system, nor the legislative history of our asylum laws, provides much help in interpreting the phrase.
Critically, in Fatin v. INS, a 1993 decision from the Third Circuit that is the leading precedent on what is and is not a "social group", then-Judge Samuel Alito noted that in the 1951 UN Refugee Convention, "the phrase 'membership of a particular social group'" was added to the refugee definition as an "afterthought".
He continued: "Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.'"
Asylum was never intended, however, to give immigration status to every foreign national who has suffered harm, even harm that, as Americans, we would consider abhorrent, so some limitation on the term was plainly intended and necessary.
Interpretations of "Particular Social Group" from 1985 to 2018
Accordingly, in Matter of Acosta, the BIA in 1985 concluded that the term "persecution on account of membership in a particular social group" means "persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic", consistent with the four other protected factors. That commonsense interpretation nonetheless left a lot of room for interpretation.
For that reason, beginning in the late 2000s, BIA began to provide guidelines for IJs and AOs to follow in assessing whether proposed groups fit the definition.
Ultimately, in 2014, the BIA issued Matter of M-E-V-G-, setting boundaries for what was and was not a "particular social group". Bringing this factor in line with the other four, it held that an alien seeking asylum or statutory withholding claiming "membership in a particular social group" must show that the group is "(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question."
Matter of A-B- and its detractors
These somewhat straightforward standards were nonetheless subject to litigation and inconsistent application, a point underscored by then-AG Jeff Sessions in his 2018 decision in Matter of A-B-. To clarify the definition, Sessions reiterated the standards established by the BIA, concluding in accordance therewith: "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." "Generally", as he made clear therein, but not always.
That decision drew complaints from aliens' advocates, not least of all because it overruled the BIA's 2014 precedent decision in Matter of A-R-C-G-, which involved an asylum applicant who claimed that she had suffered beatings and other abuse at the hands of her husband. The BIA there had held that, depending on the facts, "married women in Guatemala who are unable to leave their relationship" are a particular social group.
Sessions concluded that this should not have been published as a precedential decision because DHS had conceded there that the applicant had suffered past persecution, was a member of a particular social group, and had suffered the persecution because of her membership in that group. Nonetheless, until Matter of A-B-, it was the sole precedential decision on the issue of domestic violence and asylum protection. He was not alone in his criticism of Matter of A-R-C-G-, as his findings were echoed in decisions from the Fourth, Eighth, and Eleventh circuits.
June 2020 JNPR
DHS and DOJ have further attempted to clarify these and other issues related to asylum eligibility in a Joint Notice of Proposed Rulemaking (JNPR) published on June 15, 2020. I discussed the proposed regulations therein in some length in my comment on the JNPR and a series of posts referenced therein.
I would note that the JNPR largely codifies Sessions' findings with respect to "particular social group" in Matter of A-B-, but also addresses (among other things), the definition of "political opinion", which, as I noted above, is somewhat more protean than the three remaining protected factors. As an aside, in my comments on that JNPR, I argued that the definition of "political opinion" proposed therein was broader than under international law, and that amendments were therefore in order.
Without specifically referencing either Matter of A-B- or the JNPR, on his campaign website the former vice president contends that actions taken by the Trump administration have attempted to prevent victims of gang and domestic violence from receiving asylum "and severely limit[ed] the ability of members of the LGBTQ community, an especially vulnerable group in many parts of the world, from qualifying for asylum as members of a 'particular social group.'" Those criticisms plainly relate to Session's decision and the proposed regulatory changes.
Matter of A-B- directly overturned Matter of A-C-R-G- on the issue of domestic violence, but as a review of the circuit-court decisions referenced above reveals, the unique history of that case undercut the reliance that any adjudicator — IJ, BIA, or court of appeals — could place on that decision.
Sessions made clear that various administrations have failed to provide much guidance on the issue, and as a former IJ, I conclude that Matter of A-B- simply underscored the fact that the same standards that the BIA applied to other "particular social groups" applied to aliens seeking asylum protection based upon domestic violence suffered abroad, as well. I personally granted asylum based on domestic violence when they met the asylum standard, and would continue to do so.
The same is true of gang claims, particularly given the "at least one central reason" standard. Gang claims are generally premised on attempts to prevent the victim from cooperating with the authorities, attempts by the gang to recruit the applicant, criminal victimization by the gang such as robbery or extortion, and harm inflicted because of perceived (but purportedly erroneous) rival gang affiliation.
Cooperation with the authorities against criminal activity, resistance to recruitment, extortion based on perceptions of wealth, common criminal activity, and perceived past or present gang affiliation (true or erroneous), however, were all found to be insufficient — without more — to satisfy the asylum standard, even before Matter of A-B-.
Finally, as a matter of law, it is unclear how either the regulatory amendments in the JNPR or Matter of A-B- would stifle or undermine a claim based on LGBTQ membership. In Matter of Toboso-Alfonso, a 1990 case, the BIA recognized the validity of such claims, and that decision has not been disturbed by any subsequent decision or regulatory change under the Trump administration. Again, I granted claims on this basis, and would continue to do so under Matter of A-B- and the JNPR.
How a Biden administration would specifically respond to Matter of A-B- and the JNPR remains to be seen. He may simply follow the standards set by the BIA prior to Matter of A-B-.
It appears likely, however, based on his campaign's statements that he would render aliens who claim that they are fleeing domestic and gang violence eligible for asylum. This would significantly increase the number of aliens granted asylum, and provide greater incentives for foreign nationals to enter the United States illegally and claim credible fear.
Other Trump Administration Asylum Restrictions
In addition, in July 2019, DOJ and DHS issued an interim final rule (IFR), which, among other things, rendered aliens ineligible for asylum unless they first applied for protection in a safe third country that they transited on their way to the United States (the "third-country transit bar"). That bar applied not only to aliens seeking asylum, but also to aliens in expedited removal proceedings under section 235(b) of the INA claiming "credible fear".
That IFR was enjoined on a nationwide basis by a district court judge in California in September 2019, an injunction that was narrowed by the U.S. Court of Appeals for Ninth Circuit the next day. The day after that, the Supreme Court stayed the injunction pending litigation and review.
Further, on December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced that DHS would begin implementing what it called the "Migrant Protection Protocols" ("MPP", better known as "Remain in Mexico"), issuing policy guidance for that plan on January 25, 2019. The department explained that under MPP, aliens from countries other than Mexico (OTMs):
[E]ntering or seeking admission to the U.S. from Mexico — illegally or without proper documentation — may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.
In May 2019, the Ninth Circuit allowed MPP to proceed, as I explained in a post that month. In a February decision, a separate panel of the Ninth Circuit affirmed a preliminary injunction of MPP. On March 11, the Supreme Court stayed that injunction pending disposition by the Court. On Monday, the Supreme Court granted certiorari in that case, meaning that it will hear the matter in this term.
More generally, in response to the Wuhan coronavirus pandemic, the CDC since March has barred the entry of aliens coming to the United States illegally between the ports of entry, or without proper documents at those ports, in accordance with authority provided in 42 U.S.C. §§ 265 and 268 (Title 42 expulsions) as I explained in a May 22 post.
Despite this fact, just more than half of all aliens apprehended by CBP since March at the Southwest border and the vast majority of aliens apprehended by the agency at the Northern border since March have been "enforcement actions" under the INA (including "individuals presenting themselves to seek humanitarian protection under our laws"), not expulsions under Title 42.
Biden has vowed on his campaign to end what he terms "Trump's detrimental asylum policies". He specifically states that he will discontinue MPP, and implicitly promises to end the third-country transit bar and safe third country agreements, contending that the Trump administration has "drastically restrict[ed] access to asylum in the U.S., including imposing additional restrictions on anyone traveling through Mexico or Guatemala."
The "Biden-Sanders Unity document" is more explicit on these points, asserting that the Biden administration would end policies that "force" asylum seekers "to apply from 'safe third countries,' which are far from safe." According to that document, the Biden administration would end the safe-third country agreements that the United States has entered into with Honduras, El Salvador, and Guatemala.
That said, however, the "Unity" document makes clear that the Biden administration will:
Work with the UNHCR to strengthen asylum processing and integration efforts in Latin America and the Caribbean, especially Mexico, and promote in-country protections for Internally Displaced Populations, including those fleeing crime and gang-related violence, LGBTQ+ individuals, and victims of domestic violence.
That suggests that the Democratic candidate envisions a plan under which our regional partners would provide protection to erstwhile U.S. asylum seekers, both within their home countries and in third countries, but it provides no additional details.
Apparently referring to MPP, that document states that the former vice president will "[e]stablish a humane, expeditious process to enable migrants who have been returned to Mexico to make asylum claims." Again, it is unclear on how that process would work.
As of October 2019, according to DHS, more than 55,000 aliens had been returned to Mexico under the MPP. More aliens logically would have been returned to Mexico under that policy in the past 13 months. And, although DOJ and DHS announced plans to restart MPP hearings in July, it is unclear whether MPP hearings are currently ongoing, meaning most of those 55,000-plus are still in Mexico.
Thus, it would appear that Biden proposes allowing upwards of 60,000 OTMs (and potentially many, many more) currently in Mexico to enter the United States in fairly short order. Neither document is clear as to how those aliens would be processed by an already understaffed CBP and USCIS.
The "Unity" document also (again, somewhat elliptically) promises to allow aliens to claim credible fear notwithstanding Title 42. It states that the Biden administration will: "Take urgent action to undo the Trump Administration's unilateral executive orders on immigration, including abuses implemented during the pandemic. Uphold our commitment to offer refuge to asylum seekers, consistent with public health practices during the pandemic."
Given the fact that providing credible fear interviews would require either admitting aliens from abroad and detaining them for interviews with AOs (meaning that they would interact with one another and immigration officials in custody), or alternatively, releasing them into the United States pending AO interviews (where they could potentially convey or contract the coronavirus) it is not clear how those aliens would be permitted to seek refuge "consistent with public health practices".
Finally, as I noted in my October 14 post comparing the respective candidates' positions on border control, Biden plans to implement a September 2018 proposal from the Migration Policy Institute (MPI). MPI's proposal would empower AOs to directly grant asylum to aliens claiming credible fear. If those aliens were denied credible fear, they would be referred to IJs to apply for asylum, effectively giving them an additional "bite at the apple" as it relates to asylum.
Under other Biden proposals, and given the current state of USCIS asylum offices and the immigration courts, this would effectively allow those aliens to remain in the United States indefinitely (if not forever). This, in turn, would provide an additional incentive for foreign nationals to enter the United States illegally and claim credible fear, regardless of the strength of their claims.
The Trump administration has implemented a number of administrative actions to plug what it deems the asylum "loophole" — which, it contends, has encouraged migrants to enter the United States illegally and make fraudulent or meritless asylum claims.
Among those actions has been "Remain in Mexico" or MPP, the third-country transit bar, and a series of agreements by which our regional partners would accept third-country nationals seeking asylum in the United States to apply for protection, instead, in those countries.
MPP and the third-country transit bar have both been subject to injunctions, which have been stayed by the Supreme Court. The Court has recently agreed to hear arguments on MPP.
In addition, then-Trump AG Jeff Sessions issued a decision clarifying the standards for determining whether aliens who claim to have been subject to criminal activity in their home countries — including domestic and gang violence — are members of a "particular social group", and therefore eligible for asylum. DHS and DOJ have proposed regulations that, among other things, would codify those standards.
In his campaign documents, Biden has openly opposed the Trump administrative actions, and vowed to end them. He has, however, asserted that he will work with regional partners to provide protection to aliens fearing persecution — both in their home countries and abroad — but the specifics of that plan are extremely vague.
He has also, implicitly, criticized Sessions' decision and the proposed regulations codifying it, and asserted that he will reverse those policies. Whether he will expand asylum eligibility beyond the standards that existed prior to that decision remains to be seen, but a Biden administration would likely make aliens who claim that they are fleeing gang and domestic violence eligible for asylum, increasing the number of asylum grants, and incentives for foreign nationals to enter illegally and claim credible fear.
Finally, Biden states that he would institute policies that would give foreign nationals entering this country illegally and claiming credible fear expanded opportunities to file asylum claims — regardless of their validity. Given the high rate at which AOs find credible fear, and coupled with Biden's promises to remove only those aliens who have committed felonies in the United States and limit the use of detention, the vast majority of aliens who enter illegally will be allowed to remain indefinitely — if not permanently. This, again, will encourage other foreign nationals to enter the United States illegally.