The American Council of Immigration does not approve or oppose candidates for elected offices. We aim to provide an analysis of the impact of elections on the US immigration system.
Jessica, a client of one of the volunteer lawyers for the Immigration Judge Campaign, was ready to prove to the immigration judge that if she returned to Ecuador, she would be persecuted. After all, she fled to the United States after testifying in public court against the criminal group. He had both his husband and prosecutors working on the case.
However, before her hearing, the judge called her to the bench for a conversation. No matter how he controls her, she will be deported somewhere, he said. She may be sent to another country rather than Ecuador, but either way, she will not be allowed to stay in the United States.
Jessica decided to discuss her case anyway. She won: the judge granted her withholding of removal to Ecuador, preventing her from being sent there. However, she is still in custody and she has now been in custody for over a year (before her hearing) while the government appeals. Even if she wins the appeal, she was told, she would be deported to Mexico.
This is not an abnormality. That’s current US policy. IJC clients on the American Council of Immigration, along with countless other asylum seekers, find themselves in custody, even after relief is given. They cannot win asylum and the protection they can win proves that they are barely protected at all. The Trump administration is trying to ship them as much as possible, leaving them trapped in between.
Biden Regulations + Trump’s Notes = No chance for asylum seekers
To understand why this happens so often, we need to go back to the rules implemented under the Biden administration.
In 2023, before lifting the “Title 42” policy that allowed the government to expel asylum seekers without listening to lawsuits, the Biden administration implemented new regulations designed to make it difficult to stay in the United States and acquire asylum.
The regulation known as the “Avoiding Legal Routes” rule said people would generally not be eligible for asylum if they entered the United States during ports of entry. This policy was supplemented in 2024, with an emergency order halting asylum between ports of entry until border intersections fell below certain levels.
But in order to comply with international law that bars the US and the US from returning someone to a country facing persecution, the Biden administration did not say they were not allowed to stay in the US. Under Biden’s policy, asylum seekers were eligible for a lesser form of humanitarian relief known as “withholding tax for removal” and treaty-based protection against torture.
Those who were granted either of these protections by the judge are given a removal order at the same time, but it was generally not possible to carry out as they were unable to deport them to their home country. Traditionally, people withholding removal have often been permitted to stay in the United States indefinitely, live in their communities and work legally.
Shortly after the Trump administration took office, it declared a policy change. If the government considers it possible for them to be deported to a “third country” in the future, those who are allowed to withhold the removal will be considered candidates for deportation. The government then attempted to find another government that was willing to take them away, thanks to agreements with El Salvador and South Sudan, but was able to be detained (or re-restrained) (agree to accept retirees while still in prison after detention). IJC’s lawyers were told in court that it was the government’s policy to continue detaining people after they were allowed to withhold tax for removal by immigration judges.
The government often appeals to the Immigration Appeals Committee to grant relief from an immigration judge. For those who have been permitted to withhold tax, this appeal is different from being deported to their own country (if the grant is overturned) or another country (if it is supported). Either way, they are in custody. A decision issued by the Immigration Appeals Committee on June 11 found that those appealed for granting tax withholding are not eligible for release of bonds if they are deemed a flight risk.
Even if the government doesn’t appeal, people can be stuck in detention while the government tries to find something. IJC client Mansoor, from Sudan, agreed not to appeal the judge’s decision that he is not entitled to asylum, as long as the government agreed not to appeal the government to withhold tax for removal. Therefore, his case is final. But a month later, there was no news about where he could be deported or whether the government would find somewhere to deport him – he is still in custody.
Taken together, Biden’s policy is the only option for asylum seekers who want relief. Trump’s policies do not withhold any tax withheld.
Win and detain. Win, blackmail; Victory and deportation
Deported to Secott, El Salvador, or prisons in Libya or South Sudan could be a horrifying prospect. If the option is sent there or home, even those who are likely to be persecuted in their home country may choose to return there instead. I don’t know how many people have given up on asking for help and decided to send them back to their home country after the kind of conversation Jessica had with the judge.
But even those fighting for withholding and victory may end up being sent back to one location the judge deems unable to send back.
That’s what happened to Kilmer Abrego Garcia, who was allowed to withhold tax for removal before Trump took office, but was re-restricted under new policies. From detention, he filled the spot with one of the planes the administration sent to CECOT, violating the terms of his protection. Government lawyers admitted in federal court that there was a mistake in deporting Abrego Garcia, but they don’t know exactly what went wrong and how often it will happen.
But even when it doesn’t violate its own laws, people can go back from where they started. The man, known in court as OCG, was granted withholding tax for removal to Guatemala, but instead of being released, he was sent to Mexico. The phenomenon known as the “Chain Refulem” violates the refugee treaty, but the United States (even in front of Trump) is not particularly concerned about telling Mexico not to bring the rest of its residence home.
Those who are allowed to withhold tax for removal meet very high standards of evidence of being persecuted. However, current policies have the effect of discouraging them from trying to file their lawsuits, and even if they win, they essentially give them no.
Submitted below: Trump administration
