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July 09, 2020

Michael Breen on the proposed June 15th Asylum Regulation

July 9, 2020

RE: EOIR Docket No. 18-0002, Proposed Rulemaking: Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review

Dear Attorney General Barr, Director McHenry, Assistant Director Reid, Acting Secretary Wolf, Senior Official Mizelle, Senior Official Cuccinelli, Division Chief Dunn, and Administrator Ray:

As the president and CEO of Human Rights First, I strongly oppose this proposed regulation and urge you to withdraw it immediately.

For more than 40 years, Human Rights First has provided pro bono legal representation to refugees seeking asylum in the United States and advocated for the protection of the human rights of refugees. We operate one of the largest and most successful pro bono asylum representation programs in the country. Working in partnership with volunteer attorneys at many of the nation’s leading law firms, we provide legal representation, without charge, to hundreds of refugees each year through our offices in California, New York and Washington D.C.

The regulation proposed by your agencies would gut what remains of asylum after years of illegal and immoral attempts by this administration to disregard our immigration laws and would leave countless vulnerable people unable to obtain refugee protection in the United States. Although the United States has for decades been at the forefront of refugee protection globally, this proposed regulation would effectively eliminate asylum in the United States, blocking asylum seekers at all stages of the process and ultimately sending refugees who qualify for asylum under our immigration laws to persecution and torture in the countries they have fled. 

This rule eviscerates due process—a central tenant of the American system of justice—for asylum seekers, many of whom will not even be granted a fair day in court. Under the proposed regulation, immigration judges are given the power to deny an asylum based solely on the written application without even holding a hearing where the asylum seeker can explain why they are seeking protection in the United States. These judges and asylum officers are also granted new expanded powers to throw out asylum claims they deem “frivolous.” At the same time, the administration is pressuring immigration judges, who are employees of the Department of Justice and not truly independent adjudicators, to decide cases rapidly or face dismissal. As a result, some judges may throw asylum seekers out of court without a fair chance to make their case for protection and, in many cases, without so much as a hearing. Because eligibility for asylum depends on complicated legal questions, the impact of this rule will fall most harshly on unrepresented asylum seekers, many of whom do not speak fluent English.

Women fleeing atrocious domestic violence, LGBTQ people from countries that criminalize homosexuality, survivors of torture committed by government officials deemed to be “rogue” officers, and activists “briefly” detained by the police in their countries could all be denied asylum under this rule. The regulation explicitly states that gender would no longer be recognized as a protected ground for asylum despite years of domestic jurisprudence and international law affirming that refugee protection for those persecuted because of their gender is a valid ground for asylum. This decision is all the more cruel and misguided as women face increased levels of violence in the home during the COVID-19 pandemic.

Also introduced in the proposed regulations are a host of new procedural rules that unfairly and arbitrarily block asylum seekers from protection. For instance, asylum seekers who submit their applications more than a year after arriving in the US would be banned from asylum—with no exceptions. This policy would violate U.S. immigration law and would unjustly deny protection to asylum seekers who are unable to submit their applications due, for instance, to the severe physical and psychological trauma they suffer as a result of persecution in their home countries that kept them from being able to apply for asylum. Additionally, the rule would allow judges to deny asylum protection merely because asylum seekers, who are newcomers to our country and frequently unfamiliar with our complicated tax laws, failed to report all of their income (down to the penny) to the IRS, even unintentionally. Absurdly, the regulation also give judges new powers to deny protection to asylum seekers whose flight to the United States happened to have had two or more layovers.

The only purpose that this abhorrent regulation serves is to dismantle nearly every aspect of the asylum laws Congress adopted to protect people fleeing for their lives. I implore you to withdraw and reverse this rule before it takes effect. Our government should not be seeking to eliminate the critical pathways to humanitarian protection for refugees established by our laws, but should instead strive to realize the best of our American ideals to uphold and extend asylum to the men, women and children seeking safety on our shores.


Michael Breen