Last Updated April 9, 2021
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Rule/Decision |
In Effect? |
Primary Issue(s) |
Samples, Guidance |
Additional Resources & Other Considerations or Updates |
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AG Decision – foreclosing many gender/domestic violence/gang-related asylum cases
Matter of A-B- [I], 27 I&N Dec. 316 (A.G. 2018) Matter of A-B- [II], 28 I&N Dec. 199 (A.G. 2021) |
Yes
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We have template briefing addressing both Matter of A-B- decisions in light of Fourth Circuit case law. Please contact your mentor for access. |
The Center for Gender & Refugee Studies has issued practice advisories on the first A-B- case and can provide support tailored to your case. Sign up here to receive these CGRS resources and support. CGRS makes other materials widely available (without signing up) here.
There is a possibility that the Attorney General during the Biden administration may withdraw from these decisions, but this may or may not undo the lasting impact of this case by region as there have notable cases in the Fifth and Eleventh Circuit coming to similar holdings as the A-B- decisions. Review CGRS practice advisory on this. |
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AG Decision – foreclosing/limiting family group as a basis to apply for asylum
Matter of L-E-A- [II] 27 I&N Dec. 581 (A.G. 2019), overruling in part Matter of L-E-A- [I], 27 I&N Dec. 40 (A.G. 2017) |
Yes |
Questions whether a family PSG meets the social distinction requirement if the family does not carry “greater social import” |
We have template briefing addressing Matter of L-E-A- in light of Fourth Circuit case law. Please contact your mentor for access. |
Catholic Legal Immigration Network, Inc. (“CLINIC”), which serves as co-counsel to Mr. L-E-A-, has a practice pointer on the case available here.
National Immigrant Justice Center (NIJC) has template briefing on L-E-A- issues available here. |
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Transit Ban
(Final Rule) |
No. Enjoined. |
Required someone entering the U.S. at the southern border to apply for asylum in any country they transited on the way to the U.S., unless they are a Mexican national. |
The transit ban began as an interim/emergency rule, but it was vacated by CAIR Coalition v. Trump, 471 F.Supp.3d 25 (D.D.C. 2020), and was found unlawful in E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020). The Final Rule adopted almost verbatim the Interim Rule. The Final Rule took effect on January 19, 2021, and the East Bay II plaintiffs sought an injunction two days later. Judge Tigar enjoined the rule on Feb. 16, 2021. See E. Bay Sanctuary Covenant v. Barr (N.D. Cal. 2019) (Order Granting Prelim. Inj., 4:19-cv-04073, ECF No. 138). |
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“Death to Asylum” Rule
(Final Rule) |
No. Enjoined.
Pangea Legal Services [II] v. Barr, 20-cv-09253 (N.D. Cal.) |
Imposes sweeping changes on asylum system and severely limits the availability of asylum and related protections to individuals fleeing persecution or torture |
CAIR Coalition is a plaintiff in this case. Press releases about the filing of the lawsuit and the injunction are on our website. |
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15-day Filing for Asylum Rule (Final Rule) |
No. Enjoined.
NIJC v. EOIR, No. 21-0056 (D.D.C.) (brief order, not yet available online) |
Requires people in asylum-only or withholding-only removal proceedings to file their asylum application within 15 days of their first hearing in immigration court, in addition to restricting country conditions documents filed by respondents. |
NIJC press release on the injunction. |
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EOIR Filing Fees Rule
(Final Rule) |
Mostly No. See Order in CLINIC v. EOIR, Case No. 20-cv-03812 (D.D.C.). Larger and most important fee increases are not in effect. Fee increases that are minimal or irrelevant to people in immigration removal proceedings are in effect. |
Raises fees on various types of motions, applications (incl. asylum), and appeals at the immigration courts and Board of Immigration Appeals (BIA) |
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USCIS Filing Fees Rule
(Final Rule) |
No - USCIS announced that in compliance with two preliminary injunctions, it “is not enforcing the regulatory changes set out in the Final Rule.” 86 FR 7493 (Notice of Preliminary Injunction) |
Raises fees for applications before the USCIS agency, including asylum applications |
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Criminal Bars to Asylum Rule
(Final Rule) |
No. Enjoined.
Pangea Legal Services [I] v. DHS, 20-7721 (N.D. Cal 2020). |
Creates additional criminal bars to asylum |
CAIR Coalition is a plaintiff in this case. Press releases about the filing of the lawsuit and the injunction are on our website. |
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BIA Appeals and Motions to Reopen Rule (Final Rule) |
No. Enjoined. CLINIC v. EOIR, No. 21-0094 (D.D.C.) - The plaintiffs filed a motion for a PI, but there is no hearing scheduled on this. Centro Legal de La Raza v. EOIR, No. 21-0463 (N.D.Cal) - The plaintiffs filed a motion for a PI and there is a hearing scheduled for Mar. 4, 2021. |
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If you represent a client whose motion to reopen sua sponte is denied, please reach out to CLINIC or Tahirih, which are two organizations involved in both in challenging this rule. (update forthcoming following injunction) |
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EOIR Case Flow Processing (as revised) DHS/ICE Guidance Memorandum, "Revised Case Flow Processing Before the Immigration Courts," (Apr. 2, 2021) (revising "McHenry Case Flow Memo")
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Yes. Note that this memo canceled and replaced DOJ Memo dated 12.1.2020 (aka “McHenry Memo” or “EOIR Streamlining” Memo)
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CLINIC released a practice pointer on the original McHenry Memo here. Be aware that the streamlining memo should not apply to detained clients, pro se clients, or clients who are deemed vulnerable populations like unaccompanied minors or people with incompetency issues. |
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DHS Interim Immigration Enforcement Priorities
DHS Memo dated 1.20.2021 (aka “Pekoske Memo”)
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Yes, except the Southern District Court of Texas issued a TRO enjoining the 100-day pause on deportations, and it is in effect until Feb. 23, 2021, when the judge in this case is expected to issue a decision on the motion for a PI brought by Texas. See State of Texas v. U.S., No. 21-0003 (S.D.TX 2021). |
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We issued a preliminary practice alert on the Pekoske Memo and the interim priorities. We will update guidance after DHS releases additional operational guidance. We have sample prosecutorial discretion request that are available in the samples library. |
NIPNLG and La Resistencia created this helpful practice advisory on the TRO. |
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DHS Interim Immigration Enforcement Priorities ICE Interim Guidance, dated Feb. 18, 2021
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Yes. Effective immediately and remains in effect until DHS Secretary Mayorkas issues new guidelines. |
(forthcoming) |
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NIPNLG created this explainer for clients and the community. A Spanish version is here. NIJC issued this press release about the guidance.
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