• Becca Niburg

Changes on the Horizon for Asylum Seekers

Although the Trump presidency may be in its waning days, the administration continues to promulgate new rules and regulations. The rules were first proposed in June, allowing for a public comment period; the final rule remained virtually unchanged from the proposal in June. The Departments of Justice and Homeland Security released an extensive rule (over 400 pages) aiming to reduce the number of people eligible for asylum per year. Specifically, the Departments stated that the new rules were necessary to keep people from fraudulently claiming fear of return to their home country to secure entry to the United States.

One change concerns the level of harm that must be shown to demonstrate eligibility for asylum. “Persecution” has long been defined as an elevated level of harm that does not encompass every negative conduct that a person might experience; discrimination, for example, does not generally rise to the level of “persecution.” The rules also specifically distinguish gender and gang-based claims as generally not qualifying an applicant for asylum.

The other changes concern procedural factors in determining an individual’s eligibility for asylum benefits. Currently, factors such as how asylum seekers enter the United States and their route to the United States have only a small impact upon their eligibility for relief. This rule would penalize or even disqualify asylum seekers from relief if they entered the United States without prior authorization, used false documents to secure entry, committed or are accused of minor criminal infractions, or traveled through other countries on the way to the United States without seeking relief. The rules also include an expedited hearing system where officials can review claims without a hearing.

The provisions of the new rule went into effect on December 11, however, multiple lawsuits challenging the proposed changes to the asylum regulations have already been filed. Some of the provisions in the new rule have been implemented by the administration previously through declarations or other authorities and been struck down by the courts, so it is likely that we will see at least some of the provisions be affected by current court action. If you have a pending asylum claim filed before December, it should not be affected by these new rules; if you are considering filing an asylum claim, you should consult with an experienced immigration attorney as to how these rules may affect your case.

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