ASYLUMDHS Revokes Trump-Era Asylum Reforms That Were Tied Up in Court

By Elizabeth Jacobs

Published 5 October 2022

The U.S. Department of Homeland Security (DHS) recently canceled reforms made in 2020 to modernize the asylum system. DHS should have at least considered lawful alternatives before revoking.

The U.S. Department of Homeland Security (DHS) recently canceled reforms made in 2020 to modernize the asylum system. The regulations reflected the substantial increase in “credible fear” claims made at the border in recent years, and were intended to discourage illegal entry and to reduce incentives for aliens to file frivolous or fraudulent asylum applications merely to obtain work authorization. DHS revoked the crisis-mitigating reforms without exploring alternatives, such as reissuance, that could preserve the reforms without engaging the legal issues found by the federal courts.

DHS published a final rule last month to revoke the reform regulations issued by the Trump administration that were vacated by a Federal district court in February 2022. DHS’s rule removed all reforms made by Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal rule) and Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD rule). Both rules went into effect in August 2020.

In the recent final rule, DHS said that because the rule merely implements the vacatur and restores the original regulatory text before the 2020 policy changes, DHS is not required to go through a notice-and-comment rulemaking process or delay the final rule’s effective date. DHS also claimed to have good cause to skip usually mandatory notice and comment procedures, claiming that it was in the public interest to immediately replace the 2020 regulatory text with the version on the books before the Trump administration finalized the rules.

What Was in the Regulations DHS Revoked? Notably, the 2020 Broader Asylum EAD rule extended the waiting period before asylum applicants may apply for an EAD from 180 days to 365 days. The Immigration and Nationality Act prohibits USCIS from issuing EADs any earlier than 180 days from the date an alien files an asylum application for the very purpose of discouraging the filing of fraudulent or frivolous applications for the sole purpose of receiving an EAD. Because of the extreme increase in credible fear claims made at the border in the past decade, and corresponding growing backlog, aliens are nearly guaranteed to receive work permits in the United States.