Win and Still Lose: How U.S. Immigration Policies Are Failing Asy

Jessica fled Ecuador for her life. After bravely testifying in court against a violent criminal group that had murdered both her husband and the prosecutor handling the case, she knew returning home was not an option. She came to the United States seeking safety — and was ready to prove to an immigration judge that her fear of persecution was justified.

Before her hearing even began, the judge called her to the bench. He told her that regardless of how he ruled, she would be deported. Maybe not to Ecuador, but she wouldn’t be allowed to stay in the United States.

Jessica pressed on with her case. She prevailed — the judge granted her withholding of removal, a form of protection that prohibits deportation to her home country. But her victory was hollow. She remained in immigration detention, where she had already spent over a year, while the government filed an appeal. And even if she wins again, she’s been told she’ll be sent to Mexico.

Jessica’s case is not an isolated one. This is the reality of U.S. immigration enforcement today. Individuals who win legal protection are often still imprisoned. They can’t qualify for asylum, and the protections they can win offer little real relief. A combination of Biden-era regulations and lingering Trump-era policies have created a system where even success means continued detention or deportation.

How Two Administrations Shaped This Crisis

The current situation stems from a mix of policies from both the Trump and Biden administrations.

In 2023, just before ending Title 42 — which allowed rapid expulsions of migrants during the pandemic — the Biden administration introduced the “Circumvention of Lawful Pathways” rule. This made most people ineligible for asylum if they crossed into the U.S. outside official ports of entry. In 2024, a new emergency order temporarily suspended asylum altogether between ports until unauthorized border crossings dropped below a set threshold.

To comply with international law, which forbids returning people to countries where they face persecution, the administration still allowed access to lesser forms of protection — namely, withholding of removal and Convention Against Torture (CAT) protection.

But here’s the catch: people who win these forms of relief still receive a removal order. The only difference is that the U.S. cannot carry out the deportation to their specific country of persecution. Historically, many people in this situation remained in the U.S. indefinitely, living and working legally despite the looming removal order.

That changed under Trump. His administration declared that even those granted withholding could be deported elsewhere — to any country willing to accept them. The government also began detaining such individuals while it searched for third countries to deport them to. Countries like El Salvador and South Sudan signed agreements to receive deportees, often imprisoning them on arrival.

IJC attorneys report that it is now government policy to keep people in detention even after an immigration judge grants withholding of removal.

Stuck in Limbo: Appeals, Detention, and No Way Forward

Often, the government automatically appeals any immigration judge’s decision to grant withholding. This leaves people like Jessica trapped in detention for months — or longer — awaiting the outcome. A recent June 11 ruling by the Board of Immigration Appeals (BIA) confirmed that even while an appeal is pending, people granted withholding don’t qualify for bond if deemed a flight risk.

And even when there is no appeal, people can remain locked up while the government tries to find a country to send them to.

Take Mansour, a Sudanese man who agreed to drop his appeal in exchange for the government not challenging his grant of withholding. His case is final. Yet weeks later, he remains in detention with no information about where — or even if — he’ll be deported.

Protection in Name Only — and Sometimes Not at All

This broken system often results in further injustices. People granted protection based on real, credible threats are sometimes still deported to dangerous places — including their home countries.

That’s what happened to Kilmar Abrego Garcia, who had been granted withholding of removal before the Trump presidency. Under the new policy, he was detained again — and eventually deported to El Salvador, in direct violation of the judge’s protection order. A government lawyer admitted in federal court that his deportation was a “mistake,” but little has been done to clarify how such an error occurred — or how often it may be repeated.

In another case, a man identified only as O.C.G. was granted protection from deportation to Guatemala. Instead of being released, he was sent to Mexico — which quickly deported him to Guatemala. This is a form of “chain refoulement,” where a person is indirectly returned to a country where they face persecution, violating the Refugee Convention. And the U.S., even before Trump, has rarely intervened to prevent this from happening.

Conclusion: Winning Shouldn’t Mean Staying in Jail

Withholding of removal is not easy to win. Applicants must meet a high legal standard and provide compelling evidence of persecution. But even those who meet that burden and win their cases are left with no real relief — just indefinite detention, the threat of being sent to another unsafe country, or, worse, being sent right back into danger.