Last week, the outgoing administration issued two final rules in a last-ditch attempt to inflict further harm on asylum seekers and their due process rights.

The first policy change, announced on December 10th, will effectively end asylum as we know it in the U.S. We vehemently opposed this rule when it was proposed over the summer, encouraging our staff and supporters to submit comments in objection, and its planned implementation is devastating. It is a slash-and-burn approach to what remains of the asylum system, a system that this administration has decimated over the last four years.

The new rule renders asylum inaccessible to nearly all who seek it, including those who have traveled through more than one country on their way to the U.S. or have stayed in another country for at least 14 days prior to arriving in the U.S. The rule also changes important definitions regarding eligibility for asylum, including the definition of “persecution,” “particular social group,” and “political opinion” such that people who are fleeing gang violence or terrorist organizations would no longer be eligible, nor would people who voice political opposition to those groups. This rule would also fully eliminate gender-based asylum claims, as well as create several horrifying violations of due process rights. To read more about the broader implications of this rule, click here.

Past Trump Administration policies, from Matter of A-B- to Remain in Mexico, have rendered the asylum system nearly unrecognizable; these changes are a death blow. We are no longer a country that opens its arms to those who seek refuge and safety on our shores. Instead, we turn away families seeking protection, LGBTQ folks seeking the ability to live freely, children seeking protection from violent caretakers and ruthless gangs and women fleeing gender-based violence, sending them back to the very horrors that they escaped.

The second rule rewrites many aspects of long-established immigration court and appellate practice. In the name of efficiency, they prize speed over fairness and eliminate the most basic protections like a litigant’s ability to request an extension of a deadline. This is an essential tool for detained immigrants, who often do not receive mail quickly. The changes make it more difficult for unrepresented noncitizens to find an attorney and also more difficult for them to prevail on appeal. The rule will further expand the Board of Immigration Appeals fact-finding authority, undermining basic standards of appellate review, and limit noncitizens ability to seek remand where there is new evidence that was not previously available. Finally, this new rule will codify Matter of Castro Tum, a controversial decision by then Attorney General Sessions that has been rejected by several Courts of Appeal, and all but eliminate administrative closure, a critical tool for Immigration Judges to manage and prioritize the cases they hear. This will result both in gross injustices as well as increased inefficiency and backlogs in the Immigration Courts.

Together, these rules are punitive, inhumane, and devastating for our clients and everyone in removal proceedings, particularly those seeking asylum in the U.S. We call on the incoming Biden Administration to denounce these rules in the strongest possible terms and, upon taking office, to not only quickly begin the work of reversing these unjust rules, but also seek to proactively affirm and protect the fundamental due process and human rights of all migrants. The Florence Project will continue to strategize internally and with partner organizations across the nation. We will fight back and stand with our clients. In the coming days and weeks, stay tuned for opportunities to get involved and speak up against these cruel policies.

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