The Trump administration has quietly rewritten the rule book this month for illegal immigrants seeking asylum in the U.S., making it tougher to win their cases and easier for judges to dismiss them while erasing an incentive for migrants to even try.
The changes emerged in a series of immigration court decisions.
Attorney General Pam Bondi issued rulings tightening asylum, and the Board of Immigration Appeals barred most illegal immigrants from winning release on bond and allowed judges to “pretermit” asylum claims that appeared bogus.
Previously, judges had to hold a hearing that could last several hours, even if it was clear from the start that the migrant had no hope of winning asylum.
Together, these rules narrow illegal immigrants’ chances of winning reprieve from deportation.
Andrew “Art” Arthur, a former immigration judge, said those with strong cases should be able to win asylum faster. Those with fraudulent or bogus claims will be denied and perhaps deported faster.
He said the decision last week to allow judges to speed through cases without a chance of success is a “game changer.” It effectively creates a form of summary judgment, a standard process for regular courts, in the immigration court system.
“It’s a huge time savings,” said Mr. Arthur, now with the Center for Immigration Studies.
Although most of the focus in immigration enforcement is on the Department of Homeland Security, the Justice Department plays a crucial role by overseeing the immigration courts, which rule on asylum claims and order deportations for those found in the country’s interior.
Over the past decade, the courts have become the soft underbelly of the system. Migrants figured out that bringing bogus asylum claims can delay deportation for years, giving them a foothold in the United States.
The Biden administration made a bad situation exponentially worse. Pending court cases surged from 1.5 million at the end of fiscal year 2020 to more than 4.2 million late last year.
The Trump administration cut the number to less than 3.8 million as of July, and judges were completing cases at more than double the pace. The drop in new cases reflects an astonishingly quiet border.
A senior Justice Department official said the changes will do even more.
“Nonenforcement of the laws by the Biden administration caused the backlog to explode and incentivized even more illegal immigration. These decisions reflect the attorney general’s commitment to reversing those trends and enforcing the immigration laws as written,” the official told The Washington Times.
Immigrant rights advocates have warned that some of the changes will devastate immigrants. The bond policy, for example, could force many to decide between long-term detention to fight their cases or accepting deportations they don’t want.
The decision applies to those who jumped the border — in formal terms, entered without inspection — and reached the interior.
Previously, an immigration judge could release an asylum-seeker on bond if they didn’t have a serious criminal record and weren’t deemed a danger or flight risk. In a Sept. 5 ruling, the Board of Immigration Appeals said they could be treated like new arrivals at the border, which meant no bond, because they hadn’t been formally admitted.
“The BIA’s decision to remove the long-standing authority of immigration judges to conduct bond hearings will subject millions of people, many of whom have lived and contributed to our nation for years, to detention without a fair judicial review of their cases,” said Sui Chung, executive director of Americans for Immigrant Justice.
Ms. Bondi’s decisions in two immigration cases, under her power as attorney general, resulted in changes to the standards for asylum.
In one, she said that claiming fear of gangs back home isn’t sufficient to obtain asylum. In another, she said the fear of domestic violence didn’t qualify.
Both decisions mark a return to policies from the first Trump administration, which Attorney General Merrick Garland overturned during the Biden administration.
Activists were dismayed by the Bondi revivals.
“This is a blatant power grab by Trump’s Justice Department,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California College of the Law, San Francisco, which has been involved in litigation related to the on-again, off-again policy changes over the years.
Ms. Musalo said some migrants, particularly women and families, will qualify for asylum, but others will be returned to dangerous situations.
The Trump administration has reportedly fired dozens of immigration judges, particularly those who were profligate with granting asylum.
That includes Democratic-appointed members of the Board of Immigration Appeals, which likely contributed to the changes this month.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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