UPDATE: The Administration Continually Narrows Path to Safety and Protection

In addition to recent disappointing decisions from the U.S. Supreme Court to lift preliminary injunctions in two immigration cases - Department of Homeland Security (DHS) v. New York, et al. and Wolf, acting Secretary of DHS, v. Cook County, Illinois, et al. - and allow the public charge rule to take effect on February 24, the administration continues to introduce policies and propose rules that are dramatically reshaping the immigration system.

Too often, these changes don’t address any clear problems, but instead increase barriers for immigrants and asylum seekers. For example, toward the end of 2019, the administration released two proposed rules, as well as an interim final rule narrowing the path to asylum. In addition, the administration proposed a rule to drastically increase fees for applications for immigration relief. These proposals are making it harder for immigrant survivors of domestic violence, sexual, trafficking, and other gender-based abuses to afford, seek, and obtain safety and protection.

Alliance for Immigrant Survivors (AIS) Co-Chairs and our partners have been taking action to oppose these rules and bring attention to the harm that they would have on immigrant survivors of violence. Additional information is provided below about the proposed rules on asylum and fees for applications for immigration relief, the interim final asylum rule, and the impact these policy changes would have on immigrant survivors of violence. While the proposed policy, fee, and rule changes can appear isolated and technical, when combined, they would have a devastating impact on the ability of survivors to seek safety and justice. AIS will continue collaborating with partner organizations to take action in order to uphold and improve upon long standing protections for immigrant survivors.

Yours in solidarity,
Archi, Cecelia, Grace & Rosie

Restricting Access to Asylum for Immigrant Survivors of Violence 

The administration’s proposed changes to asylum will slow down the process and make it more difficult for survivors of gender-based violence to apply for or be eligible for asylum.

Asylum Applicant Employment Authorization Proposed Rule

On November 14, 2019, the Department of Homeland Security (DHS) announced a proposed rule that significantly limits access to employment authorization for asylum applicants. Under this proposal, asylum applicants must wait 365 days before they can apply for an Employment Authorization Document (EAD) after filing their asylum applications (previous wait time was 150 days). The rule also proposes to prohibit asylum applicants from obtaining EAD’s altogether if they: 1) missed the one-year filing deadline, 2) entered or attempted to enter the U.S. without inspection, 3) failed to appear for an appointment or reply to a notice from United States Citizenship and Immigration Services (USCIS), 4) were convicted of serious non-political crimes outside the U.S, and/or 5) were convicted of certain offenses in the U.S., including a domestic violence offense, which is subject to a discretionary exception if USCIS determines the applicant is a victim rather than a primary aggressor.

When survivors fleeing domestic violence, sexual assault, trafficking, and other gender-based abuses can access employment authorization, this means they can work, build financial resources of their own, meet their basic needs and achieve independence. By delaying or altogether prohibiting employment authorization for vulnerable survivors of violence, the administration’s proposed rule will leave them with little to no financial resources of their own. Survivors will then be forced to make impossible decisions between staying in abusive relationships or exploitative work or living conditions in order to have their basic needs met, or leaving those situations and risk falling into poverty.

AIS Co-Chairs and our partners submitted the following comments in opposition to the asylum employment authorization rule:

Asylum Cooperative Agreements (also known as “Safe Third Country Agreements”) Interim Final Rule

On November 19, 2019, the administration released an interim final rule (IFR) that allows the government to send almost any asylum-seeker -- regardless of their country of origin, the harm they suffered leading them to seek refuge in the U.S., their language, their method of transit to or entry into the U.S. -- to any country with which the U.S. has a signed and effective safe-third-country agreement. The IFR renders those seeking immigration relief through asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) who are not covered by an exception to a safe third country agreement, ineligible for all three forms of immigration relief in the U.S. This then authorizes the government to send them to a country with an active safe-third-country agreement. Currently, the IFR allows the government to send asylum seekers to Guatemala and will also allow removals to Honduras and El Salvador once agreements with those countries take effect. These agreements offer exceptions only for unaccompanied minors and individuals who have, or do not need, visas to enter the U.S. As a result, many survivors who have fled severe domestic and sexual violence and persecution may be sent to Guatemala.

Under the law, a safe third country must be one in which the removed individual would not face persecution and would “have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Guatemala, Honduras, and El Salvador (“Northern Triangle countries”) fail to meet these criteria. In fact, they are known for being countries where many women face persecution due to the pervasiveness of domestic violence, sexual assault, and other gender-based abuses; high death rates of women; and high impunity rates of perpetrators and abusers, among other risks. As of February 19, 2020 the U.S. government has sent 634 asylum seekers to Guatemala, the majority of whom are women and children. Deporting women and children to Guatemala places them at high risk of falling victim to domestic or sexual violence, as well as trafficking. 

Survivors of gender-based violence in particular are in great danger of facing further violence, especially those who have fled from the Northern Triangle countries  since persecutors can freely pursue them. On January 15, 2020, the American Civil Liberties Union (ACLU), National Immigrant Justice Center (NIJC), CGRS, and HRI filed a federal lawsuit challenging the “safe third country” rule. AIS Co-Chair Tahirih is represented in the action by the ACLU. To learn more about the lawsuit, please see the ACLU press release and Tahirih statement. In addition, CGRS, CLINIC, and Tahirih submitted comments in opposition of the “safe third country” rule.

Asylum Eligibility Bar Rule

On December 19, 2019, the administration released a proposed rule that creates seven new bars to asylum eligibility, authorizes immigration adjudicators to determine whether a conviction or conduct triggers these bars to eligibility, and removes reconsideration of discretionary denials of asylum. These proposed changes to asylum procedures and asylum eligibility would unfairly prevent many immigrant survivors from obtaining the asylum protections they need and deserve after they have fled horrific domestic, sexual, and other forms of gender-based violence to seek safety in the U.S..

To learn more about the specific proposed bars to asylum eligibility and ways to take action on the rule, please see the AIS Action Alert and these talking points, developed by the Immigrant Justice Network and NIJC.

AIS Co-Chairs and our partners submitted the following comments in opposition of the asylum eligibility bar rule:

Making Access to Safety and Justice Too Expensive

Fee Schedule and Changes to Immigration Benefit Requests proposed rule

On November 14, 2019, USCIS released a proposed fee rule that would make obtaining safety too expensive for many immigrant survivors of violence by drastically increasing fees for many applications for immigration relief, establishing new fees for asylum and DACA renewal applications, and greatly limiting availability of and eligibility for fee waivers. Furthermore, USCIS would transfer over $112 million to Immigration and Customs Enforcement (ICE) to fund investigations into immigration fraud.

Abusers and perpetrators often exploit survivors’ lack of stable immigration status in order to manipulate, control, and prevent survivors of violence from leaving or reaching out for help. The ability to apply for and gain immigration relief helps survivors to escape from abuse and rebuild their lives. As immigrant survivors often lack access to financial resources and documentation due to the violence they endured, they must rely on immigration applications to be affordable and for fee waivers to be available and flexible. This rule would put safety and justice out of reach for many survivors.

Our allies have developed resources for you to learn more about the proposed rule:

Historically, the public would be able to analyze, comment, and respond to proposed rules for a full 60 days. USCIS, however, inexplicably veered from this standard practice and initially allowed comment on the fee rule for only 30 days. Five days before the deadline, USCIS extended the deadline for an additional 15 days. Towards the end of January 2020, USCIS gave the public another 15 days to comment. This piecemeal approach does not give the public a comparable opportunity as the standard 60-day comment period to closely review and analyze the proposed rule and submit a thorough comment.

AIS Co-Chairs and our allies submitted the following comments in opposition of the proposed fee rule: