Asylum

In its first month, the Trump administration has issued dozens of executive orders (EO) that seek to limit access to the immigration system, target foreign nationals for political gain and sow chaos and fear among immigrant and advocate communities. This explainer focuses on aspects of the EOs that target immigration benefits, processing and adjudication.

When the first Trump administration took office in 2017, it immediately adopted restrictive policies on asylum, making it more difficult for asylum seekers to win their cases. Trump returning to office in January 2025 raises fears that asylum-seekers will once again be a focus of the administration’s anti-immigrant policies. Although the new administration will likely enact policies that are harmful to asylum seekers, certain changes would require Congressional action. Moreover, executive actions on asylum could be challenged in court. This alert explores what a second Trump term could mean for asylum seekers and what the administration can, and cannot, change on its own.

On November, 7, 2024, the ILRC submitted a comment on the final Securing the Border rule. ILRC had submitted comments on the interim final rule in July 2024, and reiterated our strong objections raised in that comment. The ILRC further objected to the inclusion of unaccompanied children in the threshold count for lifting the border restrictions and the expanded applicability and geographic reach of the Circumvention of Lawful Pathways rule.

Part 2 of this 2-part advisory explores some of the unexpected consequences of PD policies adopted by the ICE Office of the Principal Legal Advisor (OPLA) that can prejudice noncitizens in removal proceedings, including the practice of moving to dismiss proceedings over respondents’ objections and failing to appear at hearings.

Part 1 of this 2-part advisory provides updates on DHS’s prosecutorial discretion in removal proceedings and explores the various factors that advocates should consider when deciding whether to seek a favorable exercise of discretion from the ICE Office of the Principal Legal Advisor (OPLA). Part 1 also highlights new regulations and discusses how the upcoming presidential election may impact prosecutorial discretion.

On June 6, 2024, the ILRC submitted a comment in support of DHS’s temporary final rule (TFR) providing automatic extensions of employment authorization documents. The TFR specifically requested comment on whether the measure should be permanent and how long permanent automatic extensions should be. The ILRC wrote in support of a long and permanent auto-extension policy to ensure that applicants are not harmed by administrative delays that lead to lapses in document validity.

On July 8, the ILRC submitted a comment opposing the Biden administration’s interim final rule (IFR) entitled “Securing the Border.” The IFR unlawfully restricts asylum access by restricting entry and creating a bar to asylum eligibility when there have been a certain number of encounters at the southern U.S. border.

On June 12, the ILRC submitted a comment opposing the Biden administration’s proposed rule that seeks to apply certain mandatory bars to asylum at the fear screening stage. The proposed rule contradicts the administration’s previous finding that such a policy would be inconsistent with statutory intent. It would also deprive asylum seekers of an opportunity to access asylum procedures by adding legally complex bars to the threshold screening for eligibility.

On February 14, 2024, President Biden announced an 18-month Program of deferred enforced departure (DED) for Palestinians in the United States. This alert describes the content of the executive order. Eligible persons may apply for employment and travel authorization under the program when a notice is published in the Federal Register.