Immigration, Asylum,

and COVID 19

Dr. Kimberly Gauderman &

Rebecca Kitson, Esq.

What we will cover

• Our quick intro

• Asylum law & process basics

• Major changes under the Trump administration

• Pre-pandemic shifts in law and process

• Asylum and the Pandemic: restrictions related to COVID 19

• Stories from the front lines: impact on particular populations

• Asylum in New Mexico

Refugee and Asylum Law

A quick primer

Historical Origins

• 1951 Convention Relating to the Status of Refugees put forth by the international community

• To clarify questions of status for folks displaced by WW II

• Mostly focused on the non-return of displaced peoples – i.e., nonrefoulement

• Asylum law with rights to remain, work, etc. developed later

Historical Origins

• 1980 Refugee Act was the first broad based refugee legislation in the US

• Prior to this the law functioned on an ad hoc, situation-specific type of analysis.

• Primarily dealt with distinct, pre-screened groups of people (like refugee law today)

• From 1960 – 1990 EVD – Extended Voluntary Departure (IMMACT90 created TPS)

• Gave rise to Section 208 of the INA

Historical Perspective, cont’d

• 1985 UN Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment

or Punishment

• US adopted the CAT in 1994, giving rise to CAT

relief in addition to asylum and withholding.

*Source: Refugee Processing Center

What makes Immigration Law different?

• Immigration Law is civil, not criminal

• Deportation is not considered a legal sanction, or punishment

• “Civil” detention is meant only to secure the timely removal of non-citizens

who do not have a legal means to remain in the United States

• No right to unpaid counsel in removal proceedings

• Based in statute, not the constitution

Definition of asylum

• INA 101 §(42) The term "refugee" means:

(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Breaking out the definition

• Definition of a Refugee, INA 101(a)(42)(A) (Emphasis added)

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided,

and

who is unable or unwilling to return to,

and

is unable or unwilling to avail himself or herself of the protection of, that country

because of

persecution or a well-founded fear of persecution

on account of

race, religion, nationality, membership in a particular social group, or political opinion

What asylum is NOT

• “The limited nature of the protection offered by refugee law is highlighted by the fact that it does not cover those fleeing from natural or economic disaster, civil strife, or war….”

• Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)at 235.

• “Mere lawlessness and violence between diverse populations, of the sort which abounds in numerous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum…” Singh v. INS, 134 F.3d 962, 967 (3d Cir. 1998)

How to get denied

• Safe third country or firm resettlement

• Relocation to another part of the country

• One year filing deadline

• Exceptions include changed circumstances or extraordinary circumstances, if the person files within a reasonable period afterward.

• Fundamental change in circumstance (for the better)

• Previous application denied

• Persecutor of Others

• Conviction of a particularly serious crime

• And constitutes a danger to the community of the US

• Agg Felons are automatically considered to be a “particularly serious crime.”

• National security risk / terrorist activity

Asylum Procedure

The Tortured Pathways

Affirmative vs. Defensive Asylum

File I-589 w/ USCIS

within 1 year of entry

Asylum interview

with USCIS

Win case= granted

asylee status

Referral to EOIR for removal

proceedings if not in

status

Placed into

removal proceedin

gs= Notice to Appear

DHS proves removeability

Apply for

asylum/withholdi

ng as form of

relief

Win case=

granted asylee status

Lose case=

deported

Affirmative Asylum Process

• Already present in the US or designated unaccompanied minors

• Apply with USCIS, results in an asylum interview

• Role of expert affidavits / testimony

• Right of representation, at the expense of the applicant

• Right of translation

• Referral to immigration court

Asylum Seekers at Entry

• US immigration law and international law guarantee a right to seek asylum

whether or not they arrive at a designated port of entry. INA 208§(a)(1).

• Border entrant asylum seekers present in two ways:

• Unlawful entry between Ports of Entry (CBP)

• Presenting at a Port of Entry

• Both are subject to Expedited Removal proceedings under INA §235.

Unaccompanied Children

• “Unaccompanied Alien Child” defined by the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA):

• Under 18 years of age

• No lawful immigration status

• No parent or legal guardian in the US available to provide care and physical custody.

• A child who enters the US without a valid entry document and who was not accompanied by a parent or legal guardian.

The Immigration Court: Removal and Defense

• Proceedings are civil versus criminal

• Our immigration court sits in El Paso, Texas

• IJ’s are appointed through DOJ and are not true “judges”

• DHS-ICE counsel represents the U.S. government

• No rules of evidence, no right to paid counsel

• Subject to limited judicial review

• Defenses typically involve a way to stay in the U.S.

• Removal (previously termed deportation) can occur in absentia

Role of Legal Representation

• Can be an attorney, BIA accredited representative, or law student involved in a clinical program

• Odds are 5x higher of being granted with representation

• Over 20% generally are not represented

Role of Expert Witnesses

• Essential to corroborate claim

• Need to be qualified by the Immigration Judge

• Provide essential background and context

• Often pro bono

Immigration Court Backlog

• https://trac.syr.edu/phptools/immigration/court_backlog/

• Over 1.1 million at this point

Recent Changes to Asylum Law and Procedure

The Trump administration’s path of destruction

Changes in the Law:

Use of AG certification

• Clinton: Used three times

• Bush: Used sixteen times

• Obama: Used four times during eight years

• Under Trump:

• Attorney General Jeff Sessions certified eight cases to himself between Jan. 1, 2018, and Oct. 18, 2018.

• Matthew Whitaker, certified two cases for review in December 2018 and in April 2019.

• Attorney General William Barr decided a case “that overturned long-standing BIA precedent making asylum-seekers who pass a credible fear interview ineligible for a custody re-determination hearing before an Immigration Judge.” Four cases

Changes to Case Law Impacting Asylum

• Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

• threatens the viability of asylum claims by domestic violence survivors and others who have

faced persecution by private actors.

• Additionally, the AG’s decision and related USCIS and ICE policy memoranda will likely

alter how advocates should approach presenting asylum claims based on persecution from

non-state actors. For those who are unrepresented, overcoming the adjudicator’s perception

of legal barriers to such claims presents an almost insurmountable hurdle.

• Other changes include eliminating administrative closure and nearly eradicating

requests for continuances

Changes to Case Law Impacting Asylum

• Matter of L-E-A, 27 I&N Dec. 581 (A.G. 2019)

• Seriously undermines the use of family ties in the determination of “particular social

group”

• Completely and sweepingly changed the role of family in asylum cases from decades of

jurisprudence

Changes to Affirmative Process

• Since January of 2018, USCIS has adopted a “Last In, First Out” Policy that speeds up adjudications of affirmative cases

• June 2018: USCIS NTA Memo / RFE Memo

• October 16, 2018: The Board of Immigration Appeals decided that previously designated Unaccompanied Children who turn 18 prior to filing asylum may have their case referred to the Immigration Court. Matter of M-A-C-O, 27 I&N Dec. 477 (BIA 2018) (Overturns 2013 USCIS policy)

Recent Changes to Asylum Seekers at the Border: 2018

• April 6 – June 20, 2018: Zero Tolerance policy of

family separation and criminal prosecution of

parents (policy rescinded 6/2018)

• May 2018: Metering begins

• November, 2018: Trump administration attempts to

end asylum seeking between ports of entry, limits

entry at ports of entry, creating backlogs (blocked by

judicial injunction same month)

Recent Changes to Asylum Seekers at the

Border: 2019

• January 2019: Return to Mexico policy implemented (Migrant Protection

Protocols, or MPP)

• July 2019: Third Country Transit Ban

• November 2019: Asylum Cooperative Agreements (ACAs) with Guatemala,

El Salvador, Honduras

Immigration & Asylum in the Age of

COVID 19

• March 20, 2020: CDC stops all border entrants and Port of Entry asylum seekers from both Mexico and Canada.

• Estimates place 4000 blocked per month, including over 1000 unaccompanied children

• Immigration closures:

• US Citizenship and Immigration Services : Closed from March 18 - June 4th

• Consulates

• Courts – DOJ Executive Office of Immigration Review

• Defensive cases only detained

Immigration & Asylum in the Age of COVID 19

• April 2020: Presidential Proclamation

suspending entry of immigrants

• Detention Centers

• High transmission

• Litigation efforts

The Faces Behind The

Cases

A young lady from the Northern Triangle

The View from New

Mexico

Asylum in our backyard

New Mexico Detention Centers

• Primary is Otero County Processing

Center in Chapparal, New Mexico

• The Torrance County Detention

Facility is an asylum staging center,

opened in August of 2019 with a

bed capacity of over 900.

• Cibola County Correctional Center

The Challenges of Asylum in New Mexico

• Immigration Court in El Paso Texas

• https://trac.syr.edu/phptools/immigration/mpp/

• Houston Asylum office –riding circuit to ELP

• Lack of access to resources and counsel

• Santa Fe Dreamers Project

• NM Immigrant Law Center

• Limited UNMSOL participation – Border Initiative Project

Complaints about the El Paso Immigration

Court

• Judges at the El Paso Service Processing Center court have "notably high rates of denial," the complaint says, noting that the court granted less than 4% of asylum applications heard there between fiscal year 2013 and fiscal year 2017. Nationally, 35% of asylum cases in court are granted, according to the latest data from the Transactional Records Access Clearinghouse at Syracuse University.

• The complaint accuses judges in the court of making inappropriate comments that "undermine confidence in their impartiality" and are part of "a culture of hostility and contempt towards immigrants who appear" at the court. While hearing one case, a judge, according to the complaint, described the court as "the bye-bye place," telling a lawyer, "You know your client is going bye-bye, right?" Another judge allegedly told court observers that "there's really nothing going on right now in Latin America" that would provide grounds for asylum.

• Rules limiting evidence that can be presented at this court strip away due process, the complaint says. One judge's standing order, for example, limits the length of exhibits that can be submitted to 100 pages. "This order is particularly harmful for individuals seeking protection whose cases are more complex or where country conditions are at issue," the complaint says.

Where to next?

• Stay informed!

• Let your representatives know

your views

• Support orgs like the SF

Council on International

Relations and Women’s

International Study Center

• Support and volunteer for non-

profits like the SF Dreamers

Project and the NMILC

THANK

YOU!!

Dr. Kimberly Gauderman

Associate Professor

kgaud@unm.edu

Rebecca Kitson, Esq.

Rebecca Kitson Law

rk@rkitsonlaw.com