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Can Trump refuse asylum to aliens who make illegal entries? BY Nolan Rappaport

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President Trump thinks aliens entering our country illegally should be returned immediately with no judges or court cases.

This isn’t an idle threat. Vox Media reported the Justice Department is working on draft regulation that would result in “the most severe restrictions on asylum since at least 1965,” according to a source familiar with the asylum process.

One of the proposed changes would bar aliens who enter illegally from getting asylum — and this is feasible. Asylum is a discretionary form of relief. The Immigration and Nationality Act (INA) just states that eligible aliens “may” be granted asylum.


This does not mean that Trump would be able to refuse to consider persecution claims from aliens who have made an illegal entry. They could be eligible for other, mandatory forms of relief.


The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees.


Read more at http://thehill.com/opinion/immigrati...llegal-entries

Published originally on The Hill.

About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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Comments

  1. ImmigrationLawBlogs's Avatar
    Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?

    Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?

    Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.

    Asylum denial as a matter of discretion justified? Wouldn't this be a hard argument for even Donald Trump and Jeff Sessions to make?

    Roger Algase
    Attorney at Law
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?

    Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?

    Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.

    Asylum denial as a matter of discretion justified? Wouldn't this be a hard argument for even Donald Trump and Jeff Sessions to make?

    Roger Algase
    Attorney at Law
    It’s difficult to discuss asylum law with someone who knows so little about it.

    Roger asks, “Would the fact that granting asylum is discretionary insulate the administration from a lawsuit based on a claim that, in a specific instance, denial of asylum as a matter of discretion is an abuse of discretion or is arbitrary and capricious?”


    The discretion would be exercised in expedited removal proceedings, not in removal proceedings. The point of the regulation is to avoid hearings before the immigration court. And decisions in expedited removal proceedings are unreviewable unless there is a claim that the alien is an LPR, a US citizen, or has refugee status or some other form of legal status entitling him to enter the US.

    The Federal courts are explicitly denied such jurisdiction. The alien can't appeal to the Board of Immigration Appeals either.


    Then Roger asks, “Suppose an asylum claim is presented by someone who had been sentenced to death by a court in his/her home country for making a speech against the country's Leader?”


    The evidentiary difference between asylum and withholding of deportation is the likelihood that the persecution will occur. If the alien has been sentenced to death by a court, it’s a virtual certainty that he will be executed if he is returned to it.

    In fact, as I explain in my article, which apparently Roger didn’t read very carefully, the burden of proof in asylum is just a well-founded fear. If the persecution is more likely than not, relief is mandatory under withholding of removal, i.e., he can’t be sent back to his country.

    Read my article again, Roger. You will find that I say that asylum can be denied as a matter of discretion, but that doesn't mean that DHS won't have to evaluate persecution claims....or torture claims. If an alien has a legitimate claim under withholding or the CAT, he will have a right to present it to an immigration judge at a hearing.



    The issue in Roger's hypothetical situation would be whether carrying out the court's sentence constitutes persecution, and if so, whether the court entered it to punish the alien for being in one of the enumerated groups. If the answer is yes, the alien would be entitled to a hearing before an immigration judge.

    Then Roger asks, “Suppose that the person had presented himself/herself at a legal border US crossing point and been turned away on the grounds that the post was "full" and only after that attempted to cross at an unauthorized point after receiving reliable information that his/her home country had sent agents to Mexico to try to kill the person.”


    If an undocumented alien is standing at the border asking for asylum….or anything else, he has no rights. That changes if the port of entry accepts him for expedited removal proceedings, but not by much.

    Nolan Rappaport
    Updated 07-12-2018 at 04:39 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    My original response to Nolan's above comment has been revised based on a July 11, 2018 USCIS guidance memo which may have appeared after Nolan's above article was written, since I do not see any reference to it in that article unless I have missed something. See below.

    Roger Algase
    Attorney at Law
    Updated 07-12-2018 at 09:12 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I refer to USCIS Guidance Memo PM-602-0162 dated July 11, 2018, which is now available online, entitled:

    "Guidance for processing Reasonable, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B- "


    The Memo states in relevant part (on pages 7 and 8):

    "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"

    (Italics in above quoted part of the Memo added.)

    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?

    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?

    If he does, then America may be coming even closer to the verge of dictatorship in the "Donald Trump Era" of immigration than I have been contending.

    Nolan argues that there may be viable alternatives to asylum for certain immigrants who may have a reason to fear persecution.

    Is there also a viable alternative to democracy in the United States of America?

    I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the US may have been?

    Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.

    Roger Algase
    Attorney at Law
    Updated 07-12-2018 at 09:14 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I refer to USCIS Guidance Memo PM-602-0162 dated July 11, 2018, which is now available online, entitled:

    "Guidance for processing Reasonable, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B- "


    The Memo states in relevant part (on pages 7 and 8):

    "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"

    (Italics in above quoted part of the Memo added.)

    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?

    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?

    If he does, then America may be coming even closer to the verge of dictatorship in the "Donald Trump Era" of immigration than I have been contending.

    Nolan argues that there may be viable alternatives to asylum for certain immigrants who may have a reason to fear persecution.

    Is there also a viable alternative to democracy in the United States of America?

    I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the US may have been?

    Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.

    Roger Algase
    Attorney at Law
    Roger refers to USCIS Guidance Memo PM-602-0162 dated July 11, 2018


    I have not read the memo yet and don’t have time to do it tonight, but I may be able to answer Roger’s questions anyway.


    According to Roger, the memo says, "Of particular note, the BIA has held that unlawful entry 'is a proper and relevant discretionary factor' and can even be a 'serious adverse factor, but should not be considered in such a way that the practical effect is to deny relief [asylum] in virtually all cases'"


    Doesn't this just issued USCIS guidance memo directly contradict Nolan's apparent point (if I understand him correctly) that the Trump administration is planning to instruct asylum adjudicators to deny asylum as a matter of "discretion" in all cases where the applicant has entered the US illegally?


    That’s not my understanding of Trump’s intention. I think the plan is to handle aliens who enter without inspection without taking them before asylum adjudicators. I wrote the article to warn him that the United States has treaty obligations that prohibit that kind of summary treatment of aliens who claim a fear of persecution or torture. The courts will use those treaties to stop him, and this time the Supreme Court isn’t going to save him.


    And if he is planning to do so, does the president to have the authority to overturn all these BIA (and perhaps also judicial) precedents by executive fiat?


    That’s not the way it works. The BIA created the mess we are in by failing to reign in judges who grant most of their asylum applications or the judges who deny most of them.

    The main reason to have a BIA is to maintain uniform application of the law. They haven’t done that, and they have made matters worse by issuing poorly written precedents. Read the AG’s decision on domestic violence as a persecution ground if you don’t know why I mean.


    But presidents don’t fix problems like this. It’s AG Sessions responsibility. He has complete, absolute power over the Board. The authority they operate under was given to the AG by the Immigration and Nationality Act. That authority was delegated to the BIA by regulation and the entire EOIR operation can be shut down by withdrawing those regulations.

    Sessions is trying to handle the BIA’s responsibilities by writing precedent decisions clarifying asylum law and providing directives to USCIS, CBP and ICE. Other methods will follow.


    BIA members and immigration judges who are unwilling or unable to follow his precedents and other directives will be fired. Ashcroft fired five Board members while I was working there.


    Roger also asks, “I also do not understand where "expedited removal" comes in with respect to asylum seekers. Are they still not entitled to a "credible fear" determination by an immigration officer under INA Section 208, no matter how "undocumented" or unlawful their entry to the may have been?”


    Before expedited removal proceedings, when aliens appeared at a port of entry and asked for asylum, they were allowed to enter and released on a promise to return for their hearings, never to be seen again.

    To stop that, IIRIRA created expedited removal proceedings. Under this system, aliens are kept in mandatory detention until they have a credible fear determination. If they establish a credible fear, they are let in for a hearing and released on a promise to return.

    Currently, there is a two year wait for a hearing. Guess how many of these aliens ICE will be able to find two years from now when hearings can be scheduled for them? But the ones who can't pass the credible fear test won't be allowed in.

    There are two groups of undocumented aliens who are subject to these proceedings, aliens who asks for asylum at a port of entry and aliens who enter without inspection and are caught by the border patrol near the border.

    The directive to USCIS is a different matter. USCIS handles what they call affirmative asylum applications. These are applications that aliens who are not in removal proceedings file on their own initiative.

    The other kind is called defensive. These are submitted to immigration judges in removal proceedings for relief from deportation.

    The aliens who appear at a port of entry will be given credible fear determinations in expedited removal proceedings……but there is a limit of how many of them can be processed in such proceedings and that limit has been exceeded. That’s why CBP is sending officers into Mexico to take undocumented aliens out of line and tell them to come back another time.

    This problem is likely to get much worse as the number of aliens appearing at ports of entry for asylum increases.

    Because they are in Mexico and have no entry documents, there is nothing they can do about it.

    Finally, Roger says, “Is Nolan arguing that the unlawful entry gives the interviewing officer unlimited discretion to determine that the applicant lacks "credible fear"?”

    That would not be a reasonable reading of either INA Section 208 or the above July 11, 2018 USCIS guidance memo, I respectfully submit.”


    Forget section 208, Roger. It doesn’t apply in expedited removal proceedings the way you are suggesting. The immigration officer will decide whether an alien has a credible fear of persecution. If he decides that the alien doesn’t, he will write a very brief explanation which is reviewed by his supervisor. If the supervisor says no too, the alien can ask a judge to review the case, which just amounts to the judge looking at the written explanation and perhaps asking some questions. If the judge says no too, it’s over. The alien is tossed out of the country.

    Nolan Rappaport
    Updated 07-12-2018 at 10:44 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Since I am not an asylum expert, I would ask if Nolan can clarify one point for me, as follows: Is an expedited removal proceeding the same as a Section 208 credible fear determination interview?

    My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.

    Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.

    Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.

    Nor, of course, is it binding on the DOJ, including immigration judges.

    But, reading that memo, it appears to track Sessions' A-B- decision so closely that it would appear to be at least to prelude to the uniform guidance that Nolan mentions.

    And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as as a grounds for denying otherwise valid asylum claims.

    This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.

    Roger Algase
    Attorney at Law

    Updated 07-13-2018 at 07:57 AM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Since I am not an asylum expert, I would ask if Nolan can clarify one point for me, as follows: Is an expedited removal proceeding the same as a Section 208 credible fear determination interview?

    My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.

    Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.

    Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.

    Nor, of course, is it binding on the DOJ, including immigration judges.

    But, reading that memo, it appears to track Sessions' A-B- decision so closely that it would appear to be at least to prelude to the uniform guidance that Nolan mentions.

    And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as as a grounds for denying otherwise valid asylum claims.

    This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.

    Roger Algase
    Attorney at Law


    Roger asks, “My understanding was that expedited removal applies to people who don't have asylum claims and who meet certain standards for being removed that have nothing to do with asylum, such as being within 100 miles of the border, being in the US for only a short time, etc.”

    It's apparent that I am not going to be able to explain expedited removal proceedings in brief comments. Consequently, I am providing a link to a CRS report that provides that information.

    https://fas.org/sgp/crs/homesec/R43892.pdf

    Roger says, “Nolan also says "forget about Section 208" and then launches into a description of how a Section 208 credibility fear determination interview is conducted.

    Yes, these interviews may be cursory. But they are still mandated by Section 208, if I am reading the English language (my native tongue) correctly.”

    This is why I told him to forget section 208. It sets forth the requirements for an asylum grant. It has nothing to do with expedited removal proceedings other than the fact that the alien asylum seeker in such proceedings has to establish a credible fear of persecution using the section 208 requirements.

    Roger says, “Third, Nolan says that there will be uniform guidance on the issue of discretion to deny asylum claims which will apply across all enforcement agencies, including DHS and the DOJ.

    It is true that the USCIS memo, by its terms, is binding on that agency only, not on other branches of DHS such as ICE or CBP.”

    The memo is just binding on USCIS employees who handle asylum cases, but it is still an excellent source of guidance for everyone else who deals with asylum cases because it explains Session’s recent decision on domestic violence persecution claims and provides guidance on applying it to asylum cases.

    Roger says, “And, on the issue of using unlawful entry as an excuse to deny asylum as a matter of discretion, the July 11 memo seems to hew pretty closely to BIA precedent by quoting from an old BIA decision (not an AG decision) putting some limits on how far unlawful entry can be used as a grounds for denying otherwise valid asylum claims.”

    Sessions isn’t going to revise the entire body of Board asylum precedents. In fact, his decision on domestic violence just reinstates the Board precedents on that subject that were in effect until the poorly written precedent he reverses was issued. See my article, “Domestic abuse decision doesn't change asylum law, just applies it correctly” (June 15, 2018),

    Roger says, “This may provide some uniformity in asylum determinations (relating to this issue, it least), but this move toward uniformity does not seem to be in the direction of telling immigrants who enter unlawfully to make asylum claims to forget about asylum and seek some other relief, which as I understand it, seems to be the main point of Nolan's entire article.”

    No, that isn’t the main point of my article. My article is a warning to Trump and Sessions that although they can deny asylum applications from aliens who enter without inspection as a matter of discretion, they can’t avoid an evaluation of their persecution claims to determine whether they are eligible for mandatory relief under withholding of deportation or the CAT convention.

    Incidentally, I expect them to exercise that discretion in an executive order based on section 212(f) using the recent Supreme Court travel ban decision as authority, not in individual proceedings. The benefit is that it would reduce the motivation to make illegal entries by depriving the aliens who enter that way of any possibility of remaining here lawfully on the basis of their persecution claims. The best they could hope for would be deportation to a third country where they won’t be persecuted.

    Nolan Rappaport
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