The Implications of President Trump's Asylum Memorandum

Immigration Attorney Joel Caminero discusses how Trump may change Asylum policy and practices
Monday, May 6, 2019 - 12:00pm
Joel Caminero

On April 29, 2019, President Trump released a memorandum addressed to the Attorney General and the Secretary of Homeland Security proposing dramatic changes to the current asylum policies and laws that will create additional complexity and cost for asylum seekers to both apply for asylum as well as to receive work authorization. The President also seeks to mandate that immigration courts adjudicate applications within 180 days of filing.  

The President has ordered the Attorney General and the Secretary of Homeland Security to propose new regulations within 90 days of the memorandum to:

  1. Limit the type of proceedings asylum seekers will be placed in, such as issuing only a referral to the immigration court, rather than a Notice to Appear (NTA);
  2. Adjudicating applications for asylum, or protection from removal, referred to immigration court within 180 days of filing;
  3. Impose regulations setting a fee for an asylum application; and 
  4. Banning aliens who have entered, or attempted to enter, the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted.

Maggio Kattar Attorney Joel Caminero describes the differences between the current process for applying for asylum now, and how the proposed changes in the President Trump’s memorandum would change the asylum application process going forward:

Q:        What does it mean to enter the U.S. illegally? 

Joel:    Immigrants who enter the U.S. without inspection by Customs and Border Protection (CBP) at a port of entry are deemed to have entered the U.S. unlawfully.  Immigrants who apply for asylum immediately upon arriving at a U.S. port of entry are not deemed to have entered unlawfully.

Q:        What happens after an asylum seeker applies for asylum at a U.S. port of entry?

Joel:    Asylum seekers are initially interviewed by an Asylum Officer to determine if there truly is a credible fear of persecution in their country of nationality, on account of a protected ground, as well as determine other factors that would support eligibility.   If the Asylum Officer determines that the asylum seeker meets the eligibility requirements, they may be released on their own recognizance, or they may be further detained and referred to immigration court where a judge determines if they can post bond to be released while their application for asylum is pending.

Q.       How long does it take to receive a decision on their application for asylum?

Joel:    Federal law already requires that the government adjudicate asylum cases within 180 days. This took effect in the 1990s to combat asylum fraud and to curb a large backlog of cases;however due to limited resources, there is still a significant backlog it typically takes years before an application is adjudicated.

Q.        Can an asylum applicant work while they wait for approval of their application for asylum?

Joel:    After an application for asylum is pending for 150 days, the asylum seeker can apply for work authorization. After applying for work authorization, it generally takes approximately 90 days for an employment authorization document to be received. Upon receipt of the employment authorization document, the asylum seeker may work legally in the U.S.

Q.       Is there currently a fee for applying for asylum?

Joel.    Currently, there is no fee to apply for asylum.

Q.       What options are there for asylum seekers who initially entered the U.S without inspection?

Joel.    An asylum applicant can still apply for asylum if they do so within a period of 1 year of their entry in to the U.S.   It may also be possible to extend this period if the applicant is able to prove that extraordinary circumstances prevented them from applying within 1 year of entry. 

Q.        President Trump’s mandate would “limit the type of proceedings asylum seekers will be placed in”.  How will this impact the current process?

Joel.    Asylum seekers would go into “special proceedings” which means that they would be referred to immigration court rather than issued a notice to appear.  Under this “referral to the court,” an immigration judge does not have jurisdiction to make a custody redetermination or grant a bond, which effectively keeps them detained until their claim is concluded. Without the ability to be released from detention, it is more difficult for the asylum seeker to collect evidence needed to support their application.

Q.       Federal law already requires that applications for asylum be adjudicated within 180 days, however, this is not always the case.  How would the process differ under President Trump’s mandate?

Joel:    President Trump is seeking to enforce current federal law. However, without a significant change in resources, this would continue to be an unrealistic approach.  It would entail limiting proceedings to minimal time frames and adjudicating many claims daily.  Currently, most immigration judges, generally, do not conduct more than a handful of these hearings per week.

Q.       Could enforcement of the mandate to adjudicate asylum applications within 180-days result in more denials of asylum?

Joel:    The changes required to accommodate a 180-day deadline would mean that respondents would have less time to prepare their case.  They would likely be limited to  30-45 minutes to present their case to the immigration judge. The lack of time to prepare, limited time to present the case to the immigration judge, coupled with asylum seekers’ inability to collect supporting evidence while detained, would likely result in more denials. 

Q.        Can asylum seekers re-apply if their initial application was denied?

Joel:    Once an application for asylum has been adjudicated by the immigration court, the asylum seeker may only appeal a denial if they can demonstrate, generally, legal error or an abuse of discretion by the immigration judge. They may also reapply for asylum if there is a material change to their circumstances that impact their eligibility.

Q.       How will President Trump’s mandate that a fee be imposed for asylum applications impact the process of applying for asylum?

Joel.    Many asylum seekers enter the U.S. with barely any resources.  USCIS allows a fee waiver for certain applications.  It is not yet clear if fees associated with an asylum application would be eligible for a fee waiver, as we are still waiting for the Attorney General and Secretary of Homeland Security to submit their proposals.  Adding a fee to asylum applications will result in further congesting USCIS.

Q.        Will the new asylum application fee discourage eligible asylum applicants from entering legally?

Joel.    A new fee for asylum applications is not likely to discourage asylum seekers with meritorious claims.  What is happening in their countries will not change in the foreseeable future.  Imposing a fee will only harm those individuals with meritorious asylum claims by requiring a fee to process their application.  If the proposed fee for asylum applications is similar to the fees required in other applications, we are potentially looking at fees that would surpass asylum seeker’s monthly, or, possibly, even their yearly income.

Q.       How will President Trump’s mandate “Banning aliens who have entered, or attempted to enter, the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted.” impact asylum seekers who did apply within the 1-year timeframe, but did not apply immediately at the port of entry?

Joel.    Currently, asylum seekers may apply for work authorization after their application for asylum has been pending for 150 days.  If an asylum seeker entered the U.S. unlawfully, but applied for asylum within the 1-year deadline, under the new mandate, they could not apply for work authorization until their application for asylum is approved. However, under a newly enforced mandate, the application would be adjudicated after 180 days and upon approval, they would be able to immediately apply for work authorization, effectively only delaying work authorization for eligible asylum seekers who entered the U.S. unlawfully by 30 days. 

Q.       How does President Trump’s tweets about crime in Mexico, including calling Mexico “one of the most dangerous countries in the world” effect Mexicans seeking asylum in the U.S.?

Joel.    He is publicly acknowledging the credible fears that Mexican nationals have if they stayed in their home country and acknowledges that the Mexican government is controlled by Cartels and Gangs.