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Written by: Federal Practice Group
Written by: Federal Practice Group

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New rule gives Trump administration more discretion to change asylum law

A Justice Department sign hangs in the department’s press briefing room in Washington. A rule change affecting the department’s Executive Office for Immigration Review will allow the Trump administration more discretion in altering asylum law. (Patrick Semansky/AP)

August 23, 2019

The Trump administration on Friday issued a new rule that gives more power to the director of the agency that oversees the nation’s immigration courts, a move that attorneys say will make it easier to reject immigrants’ appeals to court decisions.

The change, part of a reorganization of the Executive Office for Immigration Review, is the latest in a series of minute policy changes that immigration advocates say are chipping away at routes through which a foreign national can seek refuge in the United States.

EOIR oversees the country’s immigration court system, which is burdened by an 850,000-case backlog. The administration’s new rule expands the EOIR director’s power to accept or deny appeals to asylum cases, decisions that can set legal precedents that redefine asylum law.

EOIR Director James McHenry, a Trump administration appointee who spent much of his career as an attorney for Immigration and Customs Enforcement, will have the authority — previously limited to the U.S. attorney general — to reverse decisions made by the Board of Immigration Appeals.

Last month, Attorney General William P. Barr reversed a decision that effectively set a new precedent preventing asylum seekers from gaining protection on the grounds that their relatives are being persecuted by criminals such as drug cartels in their countries.

Then-Attorney General Jeff Sessions last year used the same authority to block the victims of gang violence and domestic violence from qualifying for asylum, though that move was later blocked by a federal judge.

But the attorney general is limited in how frequently he can make calls on such cases, in part because of the breadth of his other responsibilities. By delegating that authority to the EOIR director, the new rule means the head of the office has been “granted a whole new power,” the Federal Practice Group who represents a number of Central American asylum seekers stated.

“In this administration, we’ve seen [the attorney general] use this authority a handful of times,” FPG said. “The director can now use the simple excuse of a backlog, and decide any cases to clear that backlog . . . He can decide cases in ways more in line with the administration.”

A Justice Department spokesperson declined to comment.

The rule is slated to go into effect on Monday when it is published in the Federal Register.

President Trump has made changing the U.S. immigration system — particularly by reducing the flow of migrants across the U.S.-Mexico border — one of his top policy priorities. In addition to constructing a border wall, Trump has also sought to deter migrant families by removing certain legal protections for migrant children, separating migrant families at the border, and requiring a growing number of asylum seekers to wait in Mexico while their claims are adjudicated in U.S. courts. Earlier this summer, the president also struck a deal with Guatemala that would allow U.S. immigration authorities to deport some Central Americans to Guatemala to pursue asylum there instead.

Nearly all of the efforts have been challenged by lawsuits.

Earlier this week, the Department of Homeland Security temporarily diverted most of its asylum officers in Boston and Newark to the border, virtually halting the processing of new asylum claims.

In a letter to area immigration attorneys, the U.S. Citizenship and Immigration Services wrote, “We intend to continue to interview a small number of cases in the Newark (Lyndhurst) office. In Boston, staff will continue to complete the process of interviewed cases, but no new interviews will be scheduled for the time being.”

The Center for Immigration Studies, which advocates strict limits to legal immigration, last year described McHenry, who was appointed by Sessions, as “the point man for the effort to restore timely and efficient adjudication of immigration cases in the face of a tremendous case backlog.”

“We’re doing a top-to-bottom review inside the agency,” McHenry said at the time, as the first in the group’s “Immigration Newsmaker” speaker series. “We’re looking for ways to be more efficient.”

By Abigail Hauslohner

National reporter focusing on immigrant communities in America

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