Changes Coming on Aug 21- Be Aware

BetterWorld

Registered Users (C)
#1
Hello!
As we know big changes to Asylum system are coming in August 2020
Request to all, please study those and mention here, and effect on your case.

MOST IMPORTANT - These regulations are not yet in effect. There is a 15-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments at https://www.regulations.gov/ (use reference number “EOIR Docket No. 18-0002”)

Let your voice heard!
 

msv5450

Active Member
#2
Hello!
As we know big changes to Asylum system are coming in August 2020
Request to all, please study those and mention here, and effect on your case.

MOST IMPORTANT - These regulations are not yet in effect. There is a 15-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments at https://www.regulations.gov/ (use reference number “EOIR Docket No. 18-0002”)

Let your voice heard!
I think the comment period is over because the USCIS draft addresses many of the comments submitted by the public. I don't think the rules will be challenged in any court because these are internal USCIS rules (like LIFO interview system) and no an executive order.

Apply for EAD as soon as possible. The new rule requires fingerprints for every EADand the ASCs are closed. will probably stay closed indefinitely because USCIS is running out of funding and a biometric center does not generate any revenue.
 

7of9

Active Member
#3
I think the comment period is over because the USCIS draft addresses many of the comments submitted by the public. I don't think the rules will be challenged in any court because these are internal USCIS rules (like LIFO interview system) and no an executive order.

Apply for EAD as soon as possible. The new rule requires fingerprints for every EADand the ASCs are closed. will probably stay closed indefinitely because USCIS is running out of funding and a biometric center does not generate any revenue.
Seems comment period is still on, until july 15. At least that is what the system is showing.
 

BetterWorld

Registered Users (C)
#5
I think the comment period is over because the USCIS draft addresses many of the comments submitted by the public. I don't think the rules will be challenged in any court because these are internal USCIS rules (like LIFO interview system) and no an executive order.

Apply for EAD as soon as possible. The new rule requires fingerprints for every EADand the ASCs are closed. will probably stay closed indefinitely because USCIS is running out of funding and a biometric center does not generate any revenue.
Are you saying that cases applied before Aug will be eligible for EAD per previous 150 days rule?
 

7of9

Active Member
#7
I have been reading the rules/changes. It's a big document, so I will will continue reading it and seeing and understanding the changes. So, the shocking change I have seen is the process for the determination of what is a "frivolous" asylum claim. Previously, only an Immigration Judge or BIA could make that determination. The administration is proposing that Asylum Officers make that determination.

This change will have a drastic effect on asylum claims. Some observations:

1. I do not think that asylum officers are qualified to make the judgement that someone has made a frivolous application. I'm not saying that the immigration judges or the BIA were 100% qualified - it is just that cases that end up there (immigration court+BIA), there is some semblance of due process, where people are given an opportunity to defend themselves, where you can argue with the help of lawyers that your case is not frivolous.

2. Most asylum claimants are new to the US. Imagine, after the trauma of walking across the world to escape killers/etc, and some battling the Darian Gap, only to reach the border and have the asylum officer determine your fate at the drop of a pen. Most people are traumatized, they are not in a sound state of mind to submit a coherent story. Even those already here, it is hard to relive your trauma and sound credible. It is easy to think that a person filed a frivolous application because of that.

3. I think that when combined with the 'one year filing rule', the change will lead to wholesale rejections of asylum claims: You have been here for 1 year without claiming asylum, therefore, you are filing a frivolous application, the officers will say.

4. Getting legal representation at the border, and during affirmative asylum process is always very hard. So, even if people have real cases, because they are not presented correctly, their claims will seem frivolous.

5. Consequences of determination that you have filed a frivolous application are dire. The rule provides an opening, where, after the determination that you have filed a frivolous application, "...in order to ameliorate the consequences of knowingly filing a frivolous application in appropriate cases, the Departments propose a mechanism that would allow certain aliens to withdraw, with prejudice, their applications by disclaiming the applications; accepting an order of voluntary departure for a period of no more than 30 days; withdrawing, also with prejudice, all other applications for relief or protection; and waiving any rights to file an appeal, motion to reopen, and motion to reconsider. In such instances the aliens would not be subject to a frivolousness finding and could avoid the penalties associated with such a finding." Essentially, self deportation.

6. Practically, if your case was true, but deemed frivolous, you do what everyone has done for decades: live in the country as a undocumented alien. What option do you have, when you can't go back because of fear, but you can't regularize your stay here?

7. What will the Canadians do? Will they also say your application is frivolous? Don't think so...so, I think people will trek north. I would go to Canada. I would continue to Greenland, if need be.


These are just my thoughts as I read the Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review
 
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BetterWorld

Registered Users (C)
#8
I have been reading the rules/changes. It's a big document, so I will will continue reading it and seeing and understanding the changes. So, the shocking change I have seen is the process for the determination of what is a "frivolous" asylum claim. Previously, only an Immigration Judge or BIA could make that determination. The administration is proposing that Asylum Officers make that determination.

This change will have a drastic effect on asylum claims. Some observations:

3. I think that when combined with the 'one year filing rule', the change will lead to wholesale rejections of asylum claims: You have been here for 1 year without claiming asylum, therefore, you are filing a frivolous application, the officers will say.
Great Job @7of9 !!

So, is it like whoever is filing after 1 year, will be considered frivolous application by default?
This is insane...
 

msv5450

Active Member
#10
Is Fingerprint or appointment to ASC must to get EAD?
I asked my lawyer today.
Those who apply for EAD before Aug 21, 2020 will fall into the previous regulation. You can apply after 150 days and they will give you an EAD after 30 days. You do need to be fingerprinted prior to EAD application according to the outdated rule. However, the new rule requires fingerprints for every EAD application that you submit.
 

newacct

Well-Known Member
#11
I think the confusion is that there are several different pending regulations related to asylum. The two that are coming into effect in August 2020 are:
Both of these are now final rules (not up for comments) published in June 2020 and will take effect in 60 days in August 2020.

There is a recent proposed rule which is currently in the comment period: Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review. This is just a proposed rule, and is not coming into effect soon; it needs to go through the 60-day comment period, and the government has to read the comments and make any changes, and publish a final rule, and it only comes into effect 60 days after the final rule is published. You may comment on it now if you like.

There was also a proposed rule in December 2019 whose comment period is over: Procedures for Asylum and Bars to Asylum Eligibility. The government has not published a final rule for this yet.
 

BetterWorld

Registered Users (C)
#14
Guys, please check from your lawyers about this "Those who apply for EAD before Aug 21, 2020 will fall into the previous regulation. " Its major item to know
 

7of9

Active Member
#15
Pre-termission of asylum cases -

Current Status: Asylees are referred to the Immigration court, automatically once they are denied asylum during the affirmative process, and they are out of status. They are then accorded a hearing in front of a judge.

Proposed change: Before the merits hearing, a judge can deny the request for asylum. Hearings are no longer a requirement to deny an asylum claim.

Observations:

1. The new rule claims that, applicants whose cases are about to be denied, will be given an opportunity to 'strengthen' their cases. That means not missing any communication from the court, means responding on time to the request for evidence. DHS or the judge can initiate the process of denial without a hearing.
2. Just means that, most cases won't stand a chance. Weak cases, or cases DHS/judge deem weak, could be be denied. This makes it hard, esp. if you are still looking for a lawyer to help you.
3. Added to the 'frivolous' determination rule above, the effect of pre-termission is to deny many applicants. Will be harder when this rule is published.
 

msv5450

Active Member
#16
Pre-termission of asylum cases -

Current Status: Asylees are referred to the Immigration court, automatically once they are denied asylum during the affirmative process, and they are out of status. They are then accorded a hearing in front of a judge.

Proposed change: Before the merits hearing, a judge can deny the request for asylum. Hearings are no longer a requirement to deny an asylum claim.

Observations:

1. The new rule claims that, applicants whose cases are about to be denied, will be given an opportunity to 'strengthen' their cases. That means not missing any communication from the court, means responding on time to the request for evidence. DHS or the judge can initiate the process of denial without a hearing.
2. Just means that, most cases won't stand a chance. Weak cases, or cases DHS/judge deem weak, could be be denied. This makes it hard, esp. if you are still looking for a lawyer to help you.
3. Added to the 'frivolous' determination rule above, the effect of pre-termission is to deny many applicants. Will be harder when this rule is published.
I think this rule will face no challenge in courts and will pass soon. Trump will definitely refer to these changes in the debates because even the majority of the left, liberal white voters are sympathetic towards border control and asylum crisis in the south. It's important to note that even Joe Biden had to acknowledge this fact and removed "My administration will ending Remain in Mexico Policy" from his campaign website after his tweet was criticized by the commenters a couple of months ago.

My question is that if the Democrats win the election, will Biden be able to rescind all these new regulations with an executive order? Or will it have to go through a long legal procedure? I don't think the current configuration of the Supreme Court will oppose these rules.
 

newacct

Well-Known Member
#17
If Democrats get a simple majority in both houses of Congress and the Presidency, they can use the Congressional Review Act to revoke rules that were finalized in the last 60 "legislative days" (not actual calendar days; for example, it allowed Republicans in 2017 to revoke rules as far back as May 2016) and this is not subject to filibustered in the Senate (so only 50 votes + VP required, not 60 votes). If a final rule has not yet been published (just a proposed rule), the administration can just abandon it and not publish a final rule. Otherwise, if a final rule has been published and cannot be revoked by CRA, then it has to go through a new regulatory process to amend that can take years. I am not sure about policies and memos that are not actual rules.
 

msv5450

Active Member
#18
If Democrats get a simple majority in both houses of Congress and the Presidency, they can use the Congressional Review Act to revoke rules that were finalized in the last 60 "legislative days" (not actual calendar days; for example, it allowed Republicans in 2017 to revoke rules as far back as May 2016) and this is not subject to filibustered in the Senate (so only 50 votes + VP required, not 60 votes). If a final rule has not yet been published (just a proposed rule), the administration can just abandon it and not publish a final rule. Otherwise, if a final rule has been published and cannot be revoked by CRA, then it has to go through a new regulatory process to amend that can take years. I am not sure about policies and memos that are not actual rules.
The regulations that we are facing are not laws passed by the Congress and the Senate. These are internal USCIS policies, similar to LIFO that was implemented in 1994 and then abandoned in 2014 and reinstated in 2018 to address the asylum abuse. I think a democratic administration can issue an memorandum to revert the rules. There will be a public comment period and eventually things will go back to normal in under a year. Making people wait for 1.5 years to get EADs will not stop anyone from applying for asylum. They can deliver Pizzas and get paid 8--$/month under the table and they know it will be enough to survive.

Overall, I think the ultimate solution to solve the asylum crisis is denying B1/B2 visas from certain Latin American countries, especially Venezuela. This country is a hot economical mess yet the US embassies used to issue 2000+ B1/B2 visas for its people every month pre-Covid. More than 1200 people from Venezuela applied for asylum every month pre-Covid, yet their approval rate is under 10%. They're just draining the system and encourage more frivolous applications. I hope that the continued effect of the pandemic on tourism and the travel ban from China will help clear the backlog eventually.
 
#19
I think this rule will face no challenge in courts and will pass soon. Trump will definitely refer to these changes in the debates because even the majority of the left, liberal white voters are sympathetic towards border control and asylum crisis in the south. It's important to note that even Joe Biden had to acknowledge this fact and removed "My administration will ending Remain in Mexico Policy" from his campaign website after his tweet was criticized by the commenters a couple of months ago.

My question is that if the Democrats win the election, will Biden be able to rescind all these new regulations with an executive order? Or will it have to go through a long legal procedure? I don't think the current configuration of the Supreme Court will oppose these rules.
There are at least 3 options to oppose this regulation. First, new President may indeed overrule this regulation by issuing another regulation.
Second, Congress can enact a new law which can possibly make this regulation impossible to execute for officials.
Third, the regulation is blocked at the start of litigation for some time and/or overruled by the Supreme Court.

This regulation will be subject to litigation from day 1 for sure
 
#20
There are many provisions in this regulation which contradict US Immigration law and International laws. I even find some provisions illegal and direct violation of Constitutional Due Process.
I'm more than sure that many provisions will be blocked
 
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