If you are an immigration attorney, you likely know a bit about the whipsaw of the law on asylum over the last few years. I plan to write more about this, but suffice it to say here that Trump’s multiple Attorney Generals did a number on various aspects of asylum law, from what constitutes a Particular Social Group to how a noncitizen refugee must prove their government is unwilling or unable to prevent demonstrated persecution against them.
The ultimate problem is procedural: asylum law has been developed within the context of the unusual nature of immigration courts, which are essentially a department of an administrative agency, rather than part of a separate-but-equal branch of the Government (ie, the judiciary) like all the other courts in the country. This means the Attorney General can impose his will, and particular policy views, on immigration law, particularly asylum law, whenever he sees fit. That’s exactly what Trump’s AGs did. And it has caused a whirlwind of confusion in asylum law.
But the new administration is doing exactly what I thought it might. There are noises that the new AG might take certain of the decisions Trump’s AGs rendered and either subject them to agency rule-making (which would remove ambiguities in how asylum law is applied across different immigration courts) or simply override the Trump-era AG decisions (as Diane Feinstein demanded AG Garland do in a recent press release).
Agency rule-making—or even legislation if that were ever a possibility in these polarized times—would help a lot. It would clarify the confusion caused by Matter of L-E-A and the A-B- decisions. It would make the path to proving eligibility for asylum more straightforward, regardless of where the noncitizen files the claim.
Stay tuned, because change is afoot.
In the meantime, if you need help with an immigration appeal, get in touch with me here.
UPDATE: the AG did indeed overrule the Trump-era AG decisions. Check back here for more on that.
