Jessica, a client of one of the Immigration Justice Campaign’s volunteer attorneys, was fully prepared to prove to an immigration judge that she’d be persecuted if she returned to Ecuador. After all, she’d fled to the U.S. after testifying in open court against a criminal group — who had murdered both her husband and the prosecutor working on the case.
Before her hearing, though, the judge called her up to the bench for a conversation. No matter how he ruled, he said, she was going to end up getting deported somewhere. She might be sent to another country rather than Ecuador, but either way, she wouldn’t be allowed to stay in the United States.
Jessica decided to argue her case anyway. She won: the judge granted her withholding of removal to Ecuador, preventing her from being sent there. But she’s still in detention, where she’s been held for more than a year now (since before her hearing), while the government appeals. Even if she wins on appeal, she’s been told, she’ll be deported to Mexico.
This isn’t an anomaly; it’s current U.S. policy. The American Immigration Council’s IJC clients, along with countless other asylum seekers, are finding themselves held in detention even after being granted relief. They can’t win asylum, and the protection they can win is proving to be very little protection at all. The Trump administration is trying to ship them out wherever it can – and keep them locked up in the meantime.
Biden Regulations + Trump Memo = No Chance for Asylum Seekers
To understand why this is happening so often, we need to go back to rules implemented under the Biden administration.
In 2023, before lifting the “Title 42” policy that allowed the government to expel asylum seekers without hearing their cases, the Biden administration implemented a new regulation designed to make it harder for people who entered to stay in the U.S. and win asylum.
The regulation, known as the “Circumvention of Lawful Pathways” rule, said that people would now be generally ineligible for asylum if they entered the U.S. between ports of entry. This policy was supplemented in 2024 with an emergency order suspending asylum between ports of entry until border crossings fell below a certain level.
However, to comply with U.S. and international law prohibiting the United States from returning someone to a country where they’ll face persecution, the Biden administration didn’t say they wouldn’t be allowed to stay in the United States at all. Under the Biden policies, asylum seekers were still eligible for lesser forms of humanitarian relief, known as “withholding of removal” and protection under the Convention Against Torture.
People who are granted one of these protections by a judge are given a removal order at the same time – but one that, because they couldn’t be deported to their home country, generally couldn’t be carried out. Traditionally, people with withholding of removal have often stayed in the U.S. indefinitely and been allowed to live in their communities and work legally for years, albeit with a removal order hanging over their heads.
Shortly after the Trump administration came into office, it declared a policy change. People who had been granted withholding of removal would be considered candidates for deportation, if the government thought they could feasibly be deported to a “third country” in the future. Then they could be detained (or re-detained) while the government tried to find another government willing to take them, thanks to agreements like those made with El Salvador and South Sudan (agreeing to accept deportees while keeping them in prison after their detention). Attorneys with the IJC have been told in court that it is the government’s policy to keep people in detention after they have been granted withholding of removal by an immigration judge.
The government often appeals any grant of relief from an immigration judge to the Board of Immigration Appeals. For people granted withholding, the appeal makes the difference between getting deported to their home country (if the grant is overturned) or to a different country (if it is upheld). Either way, they are stuck in detention. A decision issued on June 11 by the Board of Immigration Appeals found that someone whose grant of withholding is being appealed doesn’t qualify for release on bond if they are considered likely to be a flight risk.
Even if the government doesn’t appeal, people can end up stuck in detention while the government tries to find somewhere to send them. IJC client Mansour, from Sudan, agreed not to appeal the judge’s determination that he was ineligible for asylum, as long as the government agreed not to appeal his grant of withholding of removal. So his case is final. But a month later, with no news of where he could be deported – or whether the government will find somewhere to deport him at all – he’s still being detained.
Taken together, the Biden policy makes withholding of removal the only option for asylum seekers hoping for relief. The Trump policy makes withholding not much of a relief at all.
Win and Detain; Win and Threaten; Win and Deport
Being deported to CECOT in El Salvador, or to a prison in Libya or South Sudan, may be a terrifying prospect. If the options are to be sent there or sent home, even someone who is likely to be persecuted in their home country might choose to go back there instead. We don’t know how many people, after conversations like the one Jessica had with the judge, decided to give up on seeking relief at all and get sent back to their home countries.
But even people who fight for withholding and win might end up being sent back to the one place a judge has ruled they can’t get sent back to.
That’s what happened to Kilmar Abrego Garcia, who had been granted withholding of removal before Trump came into office, but was re-detained under the new policy. From detention, he ended up filling a spot on one of the planes the administration sent to CECOT – violating the terms of his protection. While a government attorney admitted in federal court that a mistake was made in Mr. Abrego Garcia’s deportation, we still don’t know exactly what went wrong, or how frequently it might happen.
But even when it’s not the U.S. violating its own laws, people can end up back where they started. A man referred to as O.C.G. in court filings was granted withholding of removal to Guatemala, but instead of being released he was sent to Mexico – which promptly put him on a plane to Guatemala. This phenomenon, known as “chain refoulement,” violates the Refugee Convention – but the U.S. (even before Trump) hasn’t been particularly concerned about telling Mexico not to send deportees the rest of the way home.
Anyone granted withholding of removal has met an extremely high standard of proof that they’ll be persecuted. But the current policy has the effect of dissuading them from even trying to make their cases – and giving them, essentially, no relief even if they win.
FILED UNDER: Trump administration
