🚨 The June "Death to Asylum" regulation has been finalized. It is set to go into effect on Monday, January 11, just nine days before inauguration.

https://t.co/tQGwoRrjjW

Under this new rule, one of Trump's last parting body blows to the United States' system of humanitarian protection, none but the lucky few will be able to win asylum.

The regulation creates near-total bans on asylum for wide swathes of people and herculean procedural barriers.
Before I get into just how horrific this new anti-asylum regulation is, a picture of Petra I took this morning to soften the blow of what is a terrible thing to read through—even though the Biden administration will be working to end it ASAP and court challenges are certain.
Back to the new regulation, which I wrote about in June when it was first proposed.

Today, the Trump administration says that they have "generally adopt[ed] the [Notice of Proposed Rulemaking] with few substantive changes." Meaning it's just as bad. https://t.co/EhWm9MwzFe
The Trump administration's anti-refugee policies show right at the start.

To them, refugee protections are first about "protecting [our] own resources and citizens" and only secondarily about protecting people from persecution.

That's what led us to turn away Jews in the 1930s.
Despite over 80,000 comments in response to this rule, the overwhelming majority of which were in opposition to the rule, the Trump administration only made FIVE substantive changes.

It's clear that they never intended to respond to comments—and that'll doom them in court.
Before I go through those five substantive changes, I encourage people to check out my thread from June analyzing the proposed regulation.

It goes over in excruciating detail just some of the terrible changes—almost all of which have now been adopted. https://t.co/Wg31fcb0uZ
Okay, the 5 changes.

First, DHS/DOJ have partially walked back their original proposal to utterly ban new Particular Social Groups in motions to reopen if not presented early on, even when it was ineffective of counsel.

Old language: New language:
Second, DHS/DOJ have also partially walked back a proposal to ban claims of persecution on the basis of death threats without an attempt (i.e. even if someone said "I'm going to kill you tomorrow" that wouldn't have been enough).

Old: New:
Third, DHS/DOJ have decided to graciously agree that illegal entry by CHILDREN shouldn't be a "significant adverse discretionary factor" in asylum... but kept in place penalties against CHILDREN for:

- not applying for asylum in a third country; or
- using fraudulent documents
Fourth, DHS/DOJ have clarified some incredibly confusing language about when a brand new (and absolutely ridiculous) definition of a "frivolous" asylum application goes into place.
And the fifth and last "substantive change"... is to make the rule even worse by eliminating a requirement that people whose applications are at risk of being deemed frivolous be given a chance to respond to concerns and argue why their case isn't frivolous.

Truly despicable.
There were over 80,000 comments in opposition to this rule. @immcouncil and tons of other orgs submitted extensive comments identifying hundreds of problems with the rules... and DHS/EOIR made just 5 substantive changes (one making things worse) and 13 non-substantive changes.
In the response to the comments, DHS/EOIR puts into footnotes that the regulation will not apply to pending applications, but at NO point in the actual text of the regulation (the part judges apply) is that written.

There will absolutely be extensive confusion over this point.
On the point of whether these rules apply to pending cases, compare the frivolousness bar—which is very explicit that it only applies to new applications—to the general language around the new definitions of asylum law.

Why should we trust DHS/EOIR's footnotes on pending cases?
DHS/EOIR are keeping in place a provision that would place every person who passes a credible fear interview at the border into "asylum-and-withholding-only proceedings."

Under a separate rule—also coming soon—they'd get just 15 days to file for asylum!

https://t.co/Ev7x0sxEUB
The entire regulation is a disaster procedurally and legally. It is blatantly unlawful in multiple locations because it flies in the face of decades of precedent on asylum.

Just on those grounds alone, a court is likely to strike down the rule as unlawful. But there's more!
The rule is also a procedural disaster. DHS/EOIR offers conclusory and insufficient responses to almost all concerns raised in the comments, despite being required to do more.

As a result, the rule will likely be blocked on Administrative Procedure Act grounds. But there's more!
The DHS part of the rule is also vulnerable because as commenters raised (and multiple federal courts have already with them), Chad Wolf is not lawfully serving as DHS Secretary.

Since Wolf doesn't have the authority to promulgate this rule, the DHS rule is totally void.
So, to sum up: this is a terrifyingly awful attack on asylum that would threaten the very foundations of the United States' promises to protect the vulnerable—but like so many Trump policies, it was done so sloppily and unlawfully that it probably won't survive in court.
One of the very first things the Biden administration should do on taking office is to declared they will not defend the rule in court, and at the same time begin the process of formally eliminating the rule and replacing it with something much better that preserves asylum.
To give an example of what I mean by "conclusory and insufficient responses" to comments, check out this one, which can only be boiled down to "nuh-uh."
Another example of total failure to engage with comments?

DHS/EOIR says people are wrong that the rules create blanket bans on certain kinds of claims because they don't "categorically rule out types of claims."

In other words, it's not a ban if 1 in 1,000 can still win. 🙄

More from Aaron Reichlin-Melnick

We finally have the U.S. Citizenship Act Bill Text! I'm going to go through some portions of the bill right now and highlight some of the major changes and improvements that it would make to our immigration system.

Thread:


First the Bill makes a series of promises changes to the way we talk about immigrants and immigration law.

Gone would be the term "alien" and in its place is "noncitizen."

Also gone would be the term "alienage," replaced with "noncitizenship."


Now we get to the "earned path to citizenship" for all undocumented immigrants present in the United States on January 1, 2021.

Under this bill, anyone who satisfies the eligibility criteria for a new "lawful prospective immigrant status" can come out of the shadows.


So, what are the eligibility criteria for becoming a "lawful prospective immigrant status"? Those are in a new INA 245G and include:

- Payment of the appropriate fees
- Continuous presence after January 1, 2021
- Not having certain criminal record (but there's a waiver)


After a person has been in "lawful prospective immigrant status" for at least 5 years, they can apply for a green card, so long as they still pass background checks and have paid back any taxes they are required to do so by law.

However! Some groups don't have to wait 5 years.
Sitting down to work for the first day of the Biden presidency is a surreal feeling.

So much happened yesterday. I'm going to collect my threads here on yesterday's big immigration news.

First, we got key details of Biden's big immigration


Once Biden had officially taken office, we got the first major action. As part of a standard transition process, the Biden White House froze all regulations which Trump had been trying to finalize at the last hour. I did a thread on what we


Last night we started getting more changes. One of the first was an order telling CBP to stop putting people into the so-called "Migrant Protection Protocols," a cruel program that's left thousands in a dangerous limbo. But there's still more to do!


After that, we began getting the text of immigration executive orders. The first one put onto the White House's website was the order ending the Muslim Ban/Africa Ban and ordering the State Department to come up with a plan for reconsidering


The next immigration executive order put on the White House's website revoked a Trump executive order from January 26, 2017 which made all undocumented immigrants a priority for deportation and directed a DHS-wide review of immigration

More from Society

So, as the #MegaMillions jackpot reaches a record $1.6B and #Powerball reaches $620M, here's my advice about how to spend the money in a way that will truly set you, your children and their kids up for life.

Ready?

Create a private foundation and give it all away. 1/

Let's stipulate first that lottery winners often have a hard time. Being publicly identified makes you a target for "friends" and "family" who want your money, as well as for non-family grifters and con men. 2/

The stress can be damaging, even deadly, and Uncle Sam takes his huge cut. Plus, having a big pool of disposable income can be irresistible to people not accustomed to managing wealth.
https://t.co/fiHsuJyZwz 3/

Meanwhile, the private foundation is as close as we come to Downton Abbey and the landed aristocracy in this country. It's a largely untaxed pot of money that grows significantly over time, and those who control them tend to entrench their own privileges and those of their kin. 4

Here's how it works for a big lotto winner:

1. Win the prize.
2. Announce that you are donating it to the YOUR NAME HERE Family Foundation.
3. Receive massive plaudits in the press. You will be a folk hero for this decision.
4. Appoint only trusted friends/family to board. 5/
This is a piece I've been thinking about for a long time. One of the most dominant policy ideas in Washington is that policy should, always and everywhere, move parents into paid labor. But what if that's wrong?

My reporting here convinced me that there's no large effect in either direction on labor force participation from child allowances. Canada has a bigger one than either Romney or Biden are considering, and more labor force participation among women.

But what if that wasn't true?

Forcing parents into low-wage, often exploitative, jobs by threatening them and their children with poverty may be counted as a success by some policymakers, but it’s a sign of a society that doesn’t value the most essential forms of labor.

The problem is in the very language we use. If I left my job as a New York Times columnist to care for my 2-year-old son, I’d be described as leaving the labor force. But as much as I adore him, there is no doubt I’d be working harder. I wouldn't have stopped working!

I tried to render conservative objections here fairly. I appreciate that @swinshi talked with me, and I'm sorry I couldn't include everything he said. I'll say I believe I used his strongest arguments, not more speculative ones, in the piece.

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