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SWEEPING REGULATION CHANGES WILL AFFECT ELIGIBILITY FOR ASYLUM

December 28, 2020
Hon. Robert Vinikoor (Ret.)

Asylum protection in the United States stems from the United Nations Refugee Convention and became law in the United States by the passage of the Refugee Act of 1980. Since 1980 applying for asylum was a protection available to people fleeing persecution in the home countries on the base of race, religion, nationality, political opinion, and membership in a particular social group. No matter how an individual arrived or entered this country they were eligible to request asylum.

The right to seek asylum is dramatically changing due final regulations that the Trump administration pushed forward and will take effect on January 11, 2021.  The regulations impose radical new bars and obstacles in almost every aspect of asylum law and procedure.

To be eligible for asylum an applicant must show that he is unable or unwilling to return to his or her native country because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The new regulations severely narrow the definition of such terms like “political opinion,” “persecution,” and “particular social group.”

For the first time, the regulations allow immigration judges to deny asylum without holding an evidentiary hearing either on their own authority or at the request of the DHS attorney.   Equally troubling the new regulations add “transit bans” for individuals passing through more than one country, staying in any transit country for over 14 days and an adding a new firm resettlement definition.  Asylum is a discretionary form of relief and the new regulations add negative discretionary factors such as failure to file taxes properly, being unlawful present for one year or more, unlawful entry or using false documents to gain entry.

If you are contemplating filing an asylum application, it should be filed no later than January 10, 2021 before these regulations become effective. If you have a pending application for asylum either before the Asylum Office of USCIS or the Immigration Court and need further advice on how to best proceed, the attorneys at Minsky, McCormick and Hallagan, P.C. are happy to meet with you to discuss your case.  Please call 312-427-6163 for a consultation.

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