New Regulations Impacting Asylum Seekers and Immigration Court

On December 11, DOJ and DHS announced a new final rule governing the procedures of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) — set to go in effect on January 11, 2021, nine days before President-elect Biden’s inauguration. The immigration bar quickly announced its opposition to the rule, stating it would “spell the death of the asylum system,” and urged the Biden Administration to prioritize its undoing.

Among other things, the final rule will elevate the legal standard needed to pass screening interviews needed to apply for asylum, will allow immigration judges to pretermit applications without giving applicants a full evidentiary hearing, will effectively narrow the legal requirements to qualify for asylum so that many persecuted individuals will no longer qualify, and will severely limit individuals who have been tortured by private actors from receiving benefits under CAT. The regulations also expand discretionary reasons for denials.

A separate anti-asylum regulation that will go in effect on January 15, 2021, will require that all asylum applicants file their I-589 applications within 15 days after their first court hearing. In addition to the regulations impacting asylum, the DOJ issued regulations to increase filing fees for applications for relief in immigration court, including the filing fee for appeals, which went from $110 to $975. Those regulations also seek to expedite the processing of appeals at the Board of Immigration Appeals and limit the independence of immigration judges by prohibiting them from administratively closing proceedings without consent from DHS, as well as limiting the reasons they can reopen removal orders.

The new regulations are the coda of the Trump Administration’s abhorrent four-year effort to dismantle protections for those fleeing persecution, many of which were described in our last newsletter. These regulations are being issued as denial rates for asylum applications reached record highs of 71.6%. They also come after attempted regulations to create additional criminal bars to asylum were temporarily blocked by a federal judge as part of an injunction. The legality of the new regulations, which appear to conflict the Immigration and Nationality Act, legal precedent in federal appellate courts, and U.S. obligations under international refugee law, will likely be challenged.