Is U.S. Asylum Protection Law Facing an End?

Supreme Court Washington

Last Friday, USCIS published a new rulemaking asylum application, in which eligibility for employment are becoming much more difficult. Coinciding with the U.S. Supreme court decision over (Department of Homeland Security) DHS v. Vijayakumar Thuraissigiam that came out earlier last week, is the U.S. asylum protection law facing an end?

Highlights of USCIS New Rule for Asylum Seekers Work Permits
  1. The new regulations will go effect on August 25, 2020
  2. Eliminates the 30-day processing timeframe for USCIS to process asylum seekers’ work permit applications
  3. Removes the provision requiring that applicants submit their renewal requests to USCIS 90 days before the expiration of their employment authorization
  4. Denies asylum seekers from obtaining work permits through a multitude of restrictions
    • Asylum seekers will need to wait 365 days instead of 150 days after filing asylum application to apply for work permits
    • Blocks work permits from asylum seekers who lost their cases at the Board of Immigration Appeal (BIA) to appeal to a Federal Court
    • Blocks work permits for asylum seekers with minor criminal offenses (including unresolved charges)
    • Denies work permits to asylum applicants who did not cross the border at an authorized port of entry
    • Terminates employment authorization on the date of denial rather than waiting for the asylum applicants to refer the case to the Department of Justice (DOJ)
Crossing the Border to Seek Asylum

Historically, migrants who have crossed the U.S. southern borders of California, Arizona, Texas, Louisiana, and Florida, or through the northern border of Canada, were arrested and placed in the Department of Homeland Security’s (DHS) custody and could ask for asylum protection on the basis of past persecution or a well-founded fear of future persecution.

The DHS asylum officer will conduct a “Credible Fear” interview to the immigrants and determine a bond amount for release. After the bond is posted, the immigrants will be released and scheduled to appear at the immigration court to have his/her asylum claim reviewed in front of an immigration judge (IJ). If the IJ grants asylum, the asylum seeker will become an asylee and he/she is eligible to apply for a green card one year later. If the IJ denies asylum, depending on basis of the denial, the asylum seeker may appeal to the BIA, then to the Federal Court, and in rare cases: The Supreme Court.

The Supreme Court Ruling of DHS v. Vijayakumar Thuraissigiam 

In 2017, Vijayakumar Thuraissigiam, a citizen of Sri Lanka was arrested after crossing the border into the U.S. near San Diego. He asked for asylum under the pretenses of persecution in Sri Lanka as a Tamil ethnic minority. However, both the DHS asylum officer and an IJ rejected his claim. He was placed in Expedited Removal to be deported. Under the Expedited Removal law, if an immigration officer determines the asylum seeker is not credible, the asylum seeker will be barred from appealing to the Federal Court. In fact, an IJ is a Justice Department employee and therefore he/she is not a part of the federal judiciary. Therefore, Vijayakumar’s asylum claim was not rejected at the Federal court level.

Through habeas corpus, a process of one to challenge unlawful detention based on constitutional rights, Vijayakumar Thuraissigiam, represented by the ACLU, appealed to the Federal Court at the 9th Ccircuit that had jurisdiction over California residents. His lawyer argued that Vijayakumar’s claim should be heard by a federal judge, otherwise it is a violation of his constitutional right. The 9th Circuit ruled in favor of Vijayakumar, citing the Expedited Removal Law that bars Vijayakumar from appealing to Federal Court is unconstitutional. DHS appealed to the US Supreme Court over the 9th Circuit ruling. On June 25, 2020, the Supreme Court struck down the 9th Circuit ruling on a 7-2 decision. The Supreme Court ruled that the habeas corpus process wasn’t available in Vijayakumar’s circumstance as he was an illegal citizen, therefore the Expedited Removal  Law complies with the Constitution, and migrants who had crossed the border can be removed quickly without Federal Court review.

Take Away

The Supreme Court’s decision is a win for the Trump Administration who wants to expand nationwide deportation utilizing Expedited Removal Law as a tool. Along with another decision that has just came out last week, all the border crossing migrants who got detained within the past two years are subject to Expedited Removal. Both asylum officers and immigration judges could reject an migrant’s asylum claim based on no ”Credible Fear” found, and the asylum seeker can be deported within a few weeks, starkly contrasting to the past where a few months would have passed while the asylum applicants appealing for the unfavorable decision.

The Supreme Court’s decision sets a precedent that will cut short migrants’ right to appeal, catapulting massive Expedited Removal, wrongly remove legitimate asylum seekers and place their lives in danger. On the contrary, the Trump Administration claims the Supreme Court’s decision will better defend the U.S. borders, uphold the law, and ensure the safety of the American public.

The key to the Supreme Court’s decision is to establish “Credible Fear” when migrants seeking asylum at the border. If an asylum officer has determined that “Credible Fear” is established, the asylum seekers will not be put in the Expedited Removal process and will be allowed to remain in the U.S while waiting for the claim to be heard by an immigration judge, the Board of Immigration Appeal, and the Federal Court.

Given the new guidelines and precedents set in place, there is no feasible way to tell how the future of asylum seekers will play out as they are cornered into a crossroad of limited options. Now that DHS asylum officers can determine the degree of “Credible Fear”, the objectivity of an interview hands uncontested leeway for officers to rule with an iron fist of deniability, ­ potentially not granting asylum seekers their initial opportunity to enter America. Coupled with the Trump’s Administration’s history of deportation, the opportunity for asylum may be diminishing within the sight of every asylum seeker yearning for a brighter future. Ultimately, this becomes a question of how the fate of asylum seekers will churn out as their future is placed in the hands of officers, not the justice system brimming with justice and check back.

US Mexico border
A pro-immigrant protest on both sides of the US-Mexico border near San Diego, California, on April 29. Image Source:

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