Trump Administration Quietly Moves to Restrict Access to Asylum, Other Protections in Immigration Court

Beyond the Border brings you human stories about the U.S. immigration system through original reporting from journalist Kate Morrissey and curated highlights from reporters across the country. The newsletter is supported by Capital & Main.

As family members and attorneys fight to free loved ones sent by the Trump administration to Salvadoran prisons, the Board of Immigration Appeals has made it more difficult for migrants to use the prisons’ conditions as a reason to qualify for refuge in the United States.

The change is an example of ways the immigration court system under President Donald Trump is moving to further restrict the ability to win protection in the U.S. for people whose cases are already pending, according to several immigration attorneys. 

“It’s clear to me why they issued [the ruling],” said immigration attorney Kevin Gregg, who hosts the podcast Immigration Review. “They’re tightening things up.”

The board’s decision comes in a case known as Matter of A-A-R- that involves a man who came to the U.S. in 1999 and joined the gang MS-13 while living here. According to court records, he was convicted of murder in North Carolina in 2006, and, after he completed his prison sentence, Immigration and Customs Enforcement deported him to El Salvador in 2021. He returned to the U.S. in 2022, the court documents say, and ended up in immigration court asking for refuge. 

He argued that he couldn’t be sent back to El Salvador because the country’s “state of exception” rule meant that he would likely be sent to prison there and tortured. Under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Convention Against Torture, which the U.S. signed in 1988, countries cannot send people back to places where they are likely to be tortured — no matter their criminal history.

Human rights observers have said that Salvadoran prisoners don’t get medical care or sufficient food and that guards often torture them. 

An immigration judge granted the man protection under the convention, finding that he had a more than a 50% chance of being tortured in a Salvadoran prison if the U.S. deported him there. 

However, on April 24, the Board of Immigration Appeals reversed the judge’s decision.

“Although the country conditions evidence reflects that hundreds of prisoners have died, that a substantial number showed signs of physical violence, and that there have been reports of severe physical violence committed by prison officials, the applicant must do more than show that some individuals in detention suffer harm rising to the level of torture,” the board wrote in its decision. 

Since Trump took office, the number of members on the Board of Immigration Appeals has shrunk by more than half. At the beginning of the year, the board listed 28 members on its official website. It now lists 12.

Beyond the Border spoke with three immigration attorneys who all said they believed the board’s decision was wrong and would be reversed with an appeal to the circuit court. But in the meantime, and even afterwards in the jurisdiction of other circuit courts, judges could use the decision to block protection for anyone afraid of ending up in a Salvadoran prison.

“Judges will rely on Matter of A-A-R- to deny Salvadoran asylum cases of all sorts and non Salvadoran asylum cases, of that I can guarantee you,” Gregg said.

Attorney Tammy Lin said she worries particularly about people who are trying to navigate the immigration court process without attorneys to help. She said federal courts have been generally siding against the Trump administration’s moves but that people who don’t have attorneys will face the toughest consequences as those cases play out. 

“The sad thing is you have, in the early part of this, the folks who are collateral damage who get swept up into it,” Lin said. “We’re seeing things being paused, but it takes time.”

Potentially precedent-setting changes, including the decision in the Matter of A-A-R-, could further combine with another recent move from the Executive Office for Immigration Review, the agency that runs immigration courts, to deny asylum to more people. An April 11 memorandum from the acting head of the courts, Sirce Owen, gives judges permission to deny asylum based on documents submitted to the court without holding a hearing to listen to testimony.  

“This is kind of a backdoor way of saying, ‘Hey, if there are case types that you think are not going to succeed — let’s say gang violence cases — you can just pretermit it and say there’s a legally insufficient argument that this person deserves asylum,’” said attorney Ginger Jacobs.

Jacobs said that cases involving protection requests are supposed to have guardrails to make sure that the judge has heard the full story before making a decision. 

It’s too soon to say how judges are using the new memorandum, the attorneys said, but Beyond the Border will keep following the situation to find out.

How Accessible Is Asylum for More Recent Arrivals?

A federal judge on Friday sided with immigration attorneys and asylum seekers in a case arguing that the Biden administration had restricted access to the asylum screening process beyond what is allowed under U.S. law. 

The asylum screening system is supposed to determine who among arriving migrants qualifies as a refugee.

Former President Joe Biden issued several rules restricting asylum access, including one that said people who didn’t enter the country at ports of entry with appointments using a smartphone app would be ineligible for asylum unless they met very narrow exceptions. Since Trump got rid of appointments in the app, that has meant that virtually no one who approaches the border can get asylum.

“Congress could not have been more clear that asylum is available to noncitizens who enter the United States outside ports of entry,” Judge Rudolph Contreras wrote in Friday’s decision. “Every court to consider the issue agrees.”

Attorney Edith Sangueza of the Center for Gender and Refugee Studies, part of the University of California School of Law in San Francisco, said that the ruling will help in the fight to restore access to asylum. 

“It upholds the fundamental argument that we’re making, which is that our statutes protect the right to asylum,” Sangueza said. “Our law protects the right to asylum, so it’s not up to the executive to make up rules or policies that violate those statutes.”

But other Trump changes still prevent asylum seekers from requesting protection, Sangueza said. One of his proclamations from the day he took office means that out of the three forms of protection that migrants can request — asylum, withholding of removal and protection under the Convention Against Torture — the only one they can currently use is protection under the Convention Against Torture. 

The initial screening for that protection, typically done over the phone with an asylum officer, is supposed to determine whether the person can go before an immigration judge for a full hearing on the issue. Sangueza said the Trump administration has raised the legal standard for that initial screening to the same level used in the final hearing, which means that the migrant must prove that they are more likely than not to be tortured after deportation. 

Migrants who manage to pass this screening are not necessarily being sent on to immigration court, Sangueza said. Several attorneys have told her that the U.S. government is instead holding their clients in custody without hearings and trying to send their clients to random other countries, including South Korea and China, she said. 

“The thing that’s so shocking is it’s people who, even under this administration, the asylum office has recognized that they are more likely than not to be tortured, and we’re just trying to get rid of them like garbage,” Sangueza said.

Other Stories to Watch

The Department of Homeland Security on Monday said that it will not renew temporary protected status for people from Afghanistan. The protections will expire on July 12, according to the department. 

On Monday afternoon, the U.N. office on migration, the International Organization for Migration, known often by the abbreviation IOM, said that, at the request of the U.S. government, it would begin assisting migrants in the U.S. who want to voluntarily return to their home countries as it does in other places in the world.

The only group of people who have government-provided attorneys in immigration court are people held in immigration detention whom the court determines are unable to represent themselves due to certain mental health or cognitive conditions. In some jurisdictions, government provision of those attorneys is mandated by federal court decisions, and the government has in recent years added those programs even in places where they aren’t required. Now the Trump administration is getting rid of them, Mother Jones reported. 

Even for children facing immigration proceedings alone, the government doesn’t have to provide attorneys. Congress has funded some representation for children in immigration court anyway, but the Trump administration has tried to cancel that contract. For Voice of San Diego, I covered the latest in that court battle and checked in at the San Diego Immigration Court to see what the children’s docket is like now. 

A visit last Friday by three members of Congress and Newark Mayor Ras Baraka to Delaney Hall, a new immigration detention facility in New Jersey, resulted in the mayor’s arrest and threats from the Homeland Security secretary to arrest the members of Congress. Baraka and the three members of New Jersey’s congressional delegation dispute the department’s version of events, and videos do not appear to back up Homeland Security’s claims.

The New Yorker recently told the story of a Venezuelan man who was ordered deported by a U.S. immigration judge in absentia, meaning the order came because he was not present in court, after the Trump administration had already sent him to a Salvadoran prison under the Alien Enemies Act of 1798. His attorney argued that because he had been in U.S. custody, it was the government’s responsibility to bring him to court, but the judge sided with ICE.

The Trump administration appears to be in talks to send noncitizens to Rwanda as well. The U.S. government also planned to send noncitizens to Libya, but a court order paused the flight last week. The book My Fourth Time, We Drowned, by Irish journalist Sally Hayden, gives a thorough account of the human rights violations, from rape and other violent attacks to starvation and lack of medical care, that migrants face in Libyan detention centers.

The New York Times reported that a toddler is without her family in the U.S. after the Trump administration deported her mother to Venezuela and sent her father to a Salvadoran prison.

NBC told the story of a recently deported Dominican man who entered the U.S. using the CBP One phone application that allowed asylum seekers to make appointments to request protections at ports of entry. The man said he missed a court date in January because he didn’t know about it since the Trump administration shut down that part of the app. 

A project from The Immigration Hub called “Disappeared in America: The Faces of Trump’s Immigration Dragnet” tells the stories of people affected by the Trump administration’s ramped up immigration enforcement efforts, organized by geographic region of the U.S.