By Licelle Cobrador, Esq.
New York – Over half a million people were turned away from the United States borders since October 2020 without any screening for fear of returning. Many asylum seekers and unaccompanied children were returned to harm.
Asylum has become more controversial recently as we hear the terms “border control” and “removal proceedings” associated with it. The former administration justified the mass expulsions, blocking asylum seekers, due to the health crisis. Citing 42 U.S.C. § 265 (“Title 42”) for the first time in U.S. history, the Department of Health and Human Services/ HHS Centers for Disease Control and Prevention/ CDC issued an order, in coordination with the Department of Homeland Security/ DHS preventing entry of people arriving at the U.S border without travel documents; the only exceptions are U.S. citizens, green card holders, members of the armed forces and their families.
Title 42 is an obscure 1944 statute that enables the Surgeon General to impose a restriction on the introduction of persons or property into the United States to prevent the spread of infectious disease. Though Congress has set up a complex legal framework for the protection of refugees arriving at U.S. borders in the succeeding years, the CDC order does not mention these prevailing laws and policies at all.
The reality is expulsions have steadily increased despite President Joseph Biden’s promise of a humane asylum system and notwithstanding the termination of the Migration Protection Protocols/ MPP, a policy that forced asylum seekers to wait in Mexico. The administration continues to utilize the Trump-era rule to block migrants from entering the United States without giving them the opportunity to apply for asylum. This certainly does not reflect, “America’s values as a nation that welcomes and supports refugees.”
An asylum seeker is an individual seeking international protection. A person may receive asylum if she or he meets the legal definition of a refugee. The 1951 United Nations Convention Relating to the Status of Refugees (“U.N. Convention”) and its 1967 Protocol Relating to Status of Refugees (“U.N. Protocol”) define “refugee” as someone who unable or unwilling to return to her or his home country and is unable to avail of the protection of that country, owing to a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. An asylum seeker is someone whose claim has not been decided upon by the county in which she or he has submitted it. Not every asylum seeker will ultimately be recognized as a refugee, but every refugee is primarily an asylum seeker.
Congress enacted the Refugee Act of 1980 (“the Refugee Act”) preserving “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” The Refugee Act amended existing law to provide that any noncitizen “who arrives in the United States… may apply for asylum”. The U.S. also signed and ratified the 1967 U.N. Protocol, which incorporates the 1951 U.N. Convention. This means that non-refoulement, the fundamental international principle prohibiting a country receiving asylum seekers from returning them to a country in which they would likely be in danger of persecution, has become the law of the land. On this basis, the U.S. Customs and Border Protection (“CBP”) should be barred from returning individuals to a country where they may face life-threatening harm on the basis of a protected ground.
Amidst increasing COVID-19 vaccinations, demands from the U.N. refugee agency, his own party members and public outcry, the U.S. can no longer shirk its obligations to receive those seeking refuge. Further, asylum processing must not be equivalent to mass detention, which poses more danger than the benefits.
A DHS final rule effective August 25, 2020 introduced the following notable changes to employment authorization eligibility of asylum seekers: 1. The waiting period is now 365 days instead of 180 days after applying for asylum; 2. If they filed past the one-year deadline, the application will be denied, unless an asylum officer or immigration judge determines an exception applies; 3. If they entered without inspection, the will not be eligible for employment authorization unless she or he notifies the DHS within 48 hours of entry, tells the DHS agent that they wish to apply for asylum or express fear of persecution or torture, and has “good cause” for entering the U.S. without inspection, which DHS states would include requiring immediate medical attention or escaping from “imminent serious harm”; 4. The new rule eliminates “recommended approvals” by an asylum officer even while background checks are being conducted; and 5. A grant is discretionary (no longer mandatory) for a properly filed application.
The far-reaching outcome of this final rule leaves asylum seekers unable to support themselves and their families while waiting for the resolution of their claims
Originally scheduled for March 22, 2021, the effective date of the “Security Bars” rule clarifying the “danger to the security of the United States” standard in the statutory bar to asylum eligibility has been delayed to December 31, 2021. Implementation of this rule is no longer feasible as the same relies on the “Global Asylum” rule entitled, “Procedures for Asylum and Withholding of Removal Credible Fear and Reasonable Fear Review” (also called “Death to Asylum”). The U.S. District Court for the Northern District of California preliminarily enjoined the government from enforcing the rule on January 8, 2021. Under the new regulations credible fear interviews will be placed into stream-lined “asylum only” hearings, which will allow the government to quickly deny claims and make asylum seekers ineligible for any other forms of immigration relief. The regulations aim to expand the definition of “frivolous” asylum application, allow immigration judges to pretermit an asylum application, limit the “political opinion” protected ground (no longer including the opposition to non-state actors), narrowly define “persecution,” and expand the government’s ability to claim firm resettlement, among others.
In Matter of Neguise, the Attorney General declared: 1. The bar to eligibility for asylum and withholding of removal based on persecution of others does not include an exception for coercion or duress and 2. The DHS does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If the record reflects that the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of evidence that it does not.
In Matter of O-M-O decided January 8, 2021, the BIA determined that an Immigration Judge may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given a chance to explain the defects.
In Matter of D-C-G decided June 7, 2021, the BIA proclaimed that the mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application.
Efforts to create insurmountable obstacles for asylum seekers are always taking place. Thus, we must continue to be vigilant in safeguarding humanitarian protections in the United States. Ensuring a just and humane asylum system will certainly be a step in the right direction.#
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.)
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law. (Featured photo by Felix Manuel: Ms. Ma Thuzar Wint Lwin of Myanmar seeks asylum in the US as her country is under military control.)