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Legal experts at UHLC Vail workshop say path to asylum in the U.S. is full of blockades

Dean Class

June 21, 2024 – Legal and immigration experts critiqued the new federal and Texas asylum policies and discussed strategies for winning gender and family-based asylum cases during the 2024 Joseph A. Vail Asylum Law Workshop hosted by the University of Houston Law Center Immigration Clinic.

UHLC Immigration Clinic Director and Clinical Associate Professor Anna Cabot welcomed attendees to the virtual event held recently.

Cabot stressed that gender-based and family-based claims are critical for the protection of refugees from Central American countries among others. Adjudicated inconsistently in the U.S. Fifth Circuit Court of Appeals, many immigrants seeking refugee and asylum status are deported back to the danger they hoped to escape.

Border Policies: Texas and the United States

Daniel Morales, UHLC Associate Professor of Law and Dwight Olds Chair, moderated a discussion on the impacts of recent asylum policies the Circumvention of Legal Pathways, Operation Lone Star and Texas Senate Bill 4.

Robert Painter, American Gateways Managing Attorney, described the general state of asylum, specifically addressing the “asylum ban” put into effect in May 2023.

Painter framed the Biden administration’s strategy to immigration policy — the Circumvention of Legal Pathways — as “a carrot and stick approach.”

“It tries to create these real, and sometimes purely theoretical alternative processes for people who fear persecution in their home country to enter the United States,” said Painter.

Due process concerns have popped up under the ban and its rules, including lack of access to counsel, conditions of detention and others noted Painter.

“I’ve seen reports from organizations like Human Rights First that say people subject to these heightened standards are three times more likely to fail at the CFI (credible fear interview) stage,” Painter said.

Concerns were raised about the legality of the ban.

“It ignores our obligations under international law (…) which don’t contemplate any limitations on the time or place or way people request asylum in the United States,” Painter said.

Kristen Etter, Director of Policy and Legal Services at the Texas Immigration Law Council, described what happens to asylum seekers entering the U.S. at the Texas/Mexico border.

Operation Lone Star is “the initial criminalization of immigration and that starts as of July in 2021 when they start prosecuting individuals, migrants, many of them asylum seekers, coming to the United States to seek asylum.”

Etter says Operation Lone Star has misappropriated the criminal justice system intending to “punish and deter immigration under the guise of a criminal trespass charge.”

To date, there have been more than 10,000 arrests for criminal trespass, Etter said.

She also called the busing component of Operation Lone Star “state-sponsored, taxpayer-funded travel agencies,” in which migrants are transported out of Texas to other locations within the United States.

The “militarization of the border” is another point of contention in Operation Lone Star, Etter explained. In the summer of 2023, the state blocked the entrances to the U.S. from certain locations using buoys and concertina razor wire in the waterways.

Texas Senate Bill 4, Etter said, is an “escalation of what has been going on in our state since March of 2021. That is when the governor of Texas declared a disaster, essentially arguing that the ongoing surge of individuals entering our country posed an ongoing threat, loss of life and property.” That proclamation has been reviewed and renewed every 30 days since 2021.

SB4 creates three new state immigration crimes and authorizes and requires state court judges to order the removal or deportation of non-citizens back to the nation through which they entered Texas, not their country of origin.

SB4 is in an “on and off again” matter in the state and is still currently blocked and tied up at the Fifth Circuit.

Moving Target: Gender and Family Asylum Claims in the Fifth Circuit

Victoria Neilson, supervising attorney for the National Immigration Project, highlighted the key aspects of family asylum cases, including the significance of defining “family” as a potential group for asylum consideration. She went on to talk about how persecution on the basis of family membership is still valid despite a limiting decision from the Board of Immigration Appeals, Matter of MRMS.

Anne Dutton, staff attorney for the Center for Gender and Refugee Studies, talked about the challenges of navigating gender-based asylum claims in the Fifth Circuit amid the ongoing legal changes.

Dutton said it is “a little bit confusing to keep track of the state of gender-based asylum claims because there has been a lot of activity over the last few years.”  

Fleeing domestic violence, in other jurisdictions, can be the basis of an asylum claim under the Matter of ARCG, which affirms the potential validity of a social groups – such as a married woman who are unable to leave their relationships – on a case by case basis. In the 5th circuit, however, this protection has been called into question by a recent decision called Jaco v. Garland.  

Samantha Del Bosque (J.D. ‘08), supervising attorney for the Tahirih Justice Center and UHLC graduate, advised on pitfalls to avoid in gender-based asylum claims, emphasizing the importance of clearly defining the social group on which the claim is founded, adding other characteristics to the group if possible, avoiding circularity, and investigating other bases for the asylum claim.

The workshop opened with a tribute by UHLC Professor and Partner at Wong Fleming Rehan Alimohammad to the Immigration Clinic’s founder Joseph A. Vail, a former immigration lawyer, judge and UHLC professor. Vail created the clinic at UHLC in 1999 after years of assisting attorneys and providing pro bono work in immigration cases, including the landmark Plyer v. Doe Supreme Court case establishing the right for undocumented children to attend public schools.

For more information about the University of Houston Law Center Immigration Clinic, visit

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