DHS Revokes Trump-Era Asylum Reforms That Were Tied Up in Court

Misses opportunity to ratify reforms to mitigate the border crisis

By Elizabeth Jacobs on October 3, 2022

The U.S. Department of Homeland Security (DHS) recently canceled reforms made in 2020 to modernize the asylum system. The regulations reflected the substantial increase in "credible fear" claims made at the border in recent years, and were intended to discourage illegal entry and to reduce incentives for aliens to file frivolous or fraudulent asylum applications merely to obtain work authorization. DHS revoked the crisis-mitigating reforms without exploring alternatives, such as reissuance, that could preserve the reforms without engaging the legal issues found by the federal courts.

DHS published a final rule last month to revoke the reform regulations issued by the Trump administration that were vacated by a Federal district court in February 2022. DHS’s rule removed all reforms made by Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal rule) and Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD rule). Both rules went into effect in August 2020.

In the recent final rule, DHS said that because the rule merely implements the vacatur and restores the original regulatory text before the 2020 policy changes, DHS is not required to go through a notice-and-comment rulemaking process or delay the final rule's effective date. DHS also claimed to have good cause to skip usually mandatory notice and comment procedures, claiming that it was in the public interest to immediately replace the 2020 regulatory text with the version on the books before the Trump administration finalized the rules.

What Was in the Regulations DHS Revoked? Notably, the 2020 Broader Asylum EAD rule extended the waiting period before asylum applicants may apply for an EAD from 180 days to 365 days. The Immigration and Nationality Act prohibits USCIS from issuing EADs any earlier than 180 days from the date an alien files an asylum application for the very purpose of discouraging the filing of fraudulent or frivolous applications for the sole purpose of receiving an EAD. Because of the extreme increase in credible fear claims made at the border in the past decade, and corresponding growing backlog, aliens are nearly guaranteed to receive work permits in the United States.

Additionally, the Broader Asylum EAD rule required asylum applicants to submit biometrics with their EAD application. It also prohibited asylum applicants with certain serious criminal convictions and who failed to file for asylum within one year of entry into the United States, consistent with the statutory one-year bar to asylum. To curtail the border crisis, the rule barred aliens who had illegally entered the United States, rather than entering lawfully through a port of entry on the border, from work authorization (but not asylum) eligibility while their asylum applications were pending. (Aliens with approved asylum applications would be able to work, and with the “last in, first out” processing USCIS employed at the time, applicants would not be forced to wait long for a decision.)

The 2020 Timeline Repeal rule, on the other hand, removed the outdated regulatory requirement that USCIS adjudicate an asylum EAD application within 30 days. This regulatory deadline was enacted by the former Immigration and Naturalization Service in 1994, and does not account for the current volume of applications and types of fraud handled by USCIS in recent years. As a result, the outdated deadline forced USCIS to devote substantial agency resources to quickly turning out EADs for asylum applicants ahead of other urgent tasks.

To address legal challenges to the Timeline Repeal rule, Secretary Mayorkas ratified the rule in May 2021. The rule had been challenged in a Maryland federal court on the basis that former Acting Secretary Chad Wolf, leading DHS at the time of issuance, lacked the authority to issue the rule because he had not been confirmed to office by the Senate as required by the U.S. Constitution.

Why Were the Rules Vacated? On February 7, 2022, the U.S. District Court for the District of Columbia vacated both rules in a case called Asylumworks v. Mayorkas, No. 20-CV-3815, 2022 WL 355213 (D.D.C.). The court ruled that Mayorkas could not legally ratify regulations issued by Wolf, and therefore that ratification of the DHS Timeline Repeal rule did not cure the defect that Wolf's tenure created.

These Crisis-Mitigating Reforms Could Have Still Been Salvaged. The federal court ruling did not require DHS to “abandon ship”. Even if the District court is correct that 2020 regulations may not be ratified by Mayorkas, this decision does not prevent DHS from reissuing these regulations. While generally regulations take numerous months, and oftentimes years, to complete, the work for these regulations has already been largely completed. Data and administrative histories would have to be updated, but the text has already been negotiated between the government’s stakeholder offices. Additionally, the general public is unlikely to submit drastically new arguments in support of or against the rule during the public comment period. DHS’s refusal to continue to defend or simply reissue the rules signals a larger issue regarding the administration’s willingness to solve this crisis with reforms aimed at deterrence.

DHS Should Have at Least Considered Lawful Alternatives Before Revoking. Under the standards clarified by the U.S. Supreme Court in Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020), however, DHS may not have lawfully revoked the regulations, even in light of the vacatur. In Regents, the Court held that DHS’s termination of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious because DHS failed to adequately consider reliance interests of beneficiaries of the program. Here, DHS argued that it terminated the program after determining, in consultation with the attorney general, that DACA violated federal law. The Court, however, found that DHS’s termination was unlawful because the agency failed to adequately consider lawful alternatives to maintain DACA, such as eliminating work authorization and other benefits associated with the program but maintaining the forbearance from removal aspects.

State governments, such as Texas and Arizona, have been repeatedly found by federal courts to have these types of reliance interests in illegal immigration-deterrence policies. If DHS did not properly consider reissuing these rules or promulgating lawful alternatives that alleviate the legal issues presented by the federal court rulings, then DHS again should be found to have acted arbitrarily and capriciously in revoking the 2020 rules.

Topics: Asylum