Last time, we discussed how standards of evidence have become more challenging under the Trump Administration. Here, we'll talk about some other ways the government is trying to prevent applicants from receiving asylum in the United States.

One trick that seems increasingly common, especially in Immigration Court, is related to a case called Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015). This is not a new case, but its rule had rarely been enforced. Essentially, it states that if you filed for asylum for one reason, but then something changes and you have a new basis for asylum, you need to file a new claim for asylum. If you fail to do that soon after the change, your claim could be barred as filed too late (per the one-year asylum bar). DHS (the prosecutor in Immigration Court) recently tried to block one of my clients based on Matter of M-A-F-. My client feared persecution from the Ethiopian government and filed for asylum in 2015. DHS argued that the government changed in 2018 when a new prime minister came to power, and that we failed to amend the asylum application after the change. We countered that it was the same government persecuting my client, but with different leadership. My client ultimately prevailed, but this is not an argument DHS had been making previously, and now we are seeing it more often. So if you have a new basis for asylum, it is best to inform the Asylum Office or the Immigration Court as soon as possible.

Speaking of the one-year asylum bar, since the Trump Administration is looking for reasons to deny, it is doubly important to provide evidence and show that you filed timely for asylum or that you meet an exception to the one-year bar. I wrote more about this here. I'd also note that if you filed late, but if something changes giving you a new basis for asylum, you can file a new claim and possibly use that as a reason to overcome the one year bar.

Another way the Trump Administration is trying to block asylum seekers is the Circumvention of Lawful Pathways rule. This started under President Biden and is a way to deny asylum to people who arrived at the U.S.-Mexico border on or after May 11, 2023 and who failed to make an appointment to present their asylum claim using the CBP-One app. Such people may still qualify for Withholding of Removal or protection under the Torture Convention, but these are not as secure as asylum, and they do not protect you from deportation to a third country. If you arrived at the Southern border and failed to use the CBP-One app, you need to show that you meet an exception to the rule in order to qualify for asylum. I wrote more about that here.

Also, of course, there is the $100 annual fee for asylum cases. If you have an asylum application pending in Immigration Court, it is now possible to pay the annual fee here. The court will supposedly send a notice informing you that you have to pay, but you don't need to wait for the notice to make a payment. If you have a case at the Asylum Office, you can pay here. However, you can only pay the fee at the Asylum Office after USCIS sends you a notice (there is no harm in trying to pay before you get the notice, but this probably won't work until the notice arrives). Failure to pay could result in an asylum case being denied.

For people in Immigration Court who might be denied asylum due to the one-year bar, failure to use CBP-One, a criminal issue or for some other reason, they might still qualify for Withholding of Removal or protection under the Torture Convention. However, these forms of relief do not include dependents. For this reason, each dependent who fears persecution should file their own asylum application, form I-589 and pay the $100 asylum fee. This will help avoid a situation where the principal gets Withholding of Removal, but the dependent family members are ordered deported.

Another way the current Administration is harming asylum seekers is by scheduling their cases with little advance notice. We can expect to see this more frequently in Immigration Court because the government is appointing hundreds of military judges to adjudicate cases. It is also happening at the Asylum Office, which has never really provided adequate advance notice before an interview. Because cases can be scheduled with little warning, it is important that you gather your evidence and have everything ready, just in case you are required to present your application quickly.

Finally, some asylum seekers--particularly those in court who entered the U.S. at the Southern border--are being detained by ICE and placed into expedited removal proceedings. If that happens, it is more difficult to present an asylum claim and defend yourself from deportation. If you have an Immigration Court case and think you might be vulnerable to expedited removal, try to prepare your case in advance, and talk to a lawyer about how to best protect yourself. I wrote more about this issue here.

Unfortunately, it is not entirely possible to "Trump proof" an asylum application. When the weight of the federal government is turned towards denying asylum cases, it inevitably becomes more difficult to receive protection. However, you can take steps to maximize the possibility of success, and despite the hostility of the current Administration, it is still possible to win an asylum case.

Originally posted on the Asylumist: www.Asylumist.com