Chasing the Counsel: How a New DHS Memo Could Quietly Reshape Asylum Help for Kenyans in America

In a cramped office above a Kenyan restaurant in Lowell, Massachusetts, a Nyeri-born nurse spent most of Tuesday afternoon photocopying the same three pages: a personal statement, a police abstract from Karatina, and a one-page letter from her pastor. She is preparing, with her lawyer, the affidavit that will accompany her asylum application. She has been working on it, on and off, for fourteen months. By Tuesday night, half a continent away in Washington, the legal climate around that paperwork had quietly shifted.

A memo dated May 26, 2026, signed by Department of Homeland Security General Counsel James Percival, instructs Immigration and Customs Enforcement attorneys to draft "anti-fraud policies" aimed at the "robust enforcement" of federal anti-fraud statutes. The directive does not introduce new criminal penalties. What it does, in language that has alarmed advocacy groups and emboldened administration allies, is push ICE lawyers to apply existing tools more aggressively, and to apply them not only to asylum seekers themselves but to the immigration attorneys who file claims on their behalf.

For the small bar of lawyers, paralegals and community navigators who serve Kenyans in the United States, the memo lands at an uncomfortable moment. The Kenyan asylum pipeline is modest compared with caseloads from Venezuela, Haiti or Afghanistan, but it has grown steadily through the post-2024 wave of work, study and family-reunification arrivals. Many of those cases now sit, half-built, in shared Google Drives and bursting redweld folders, awaiting a court date that may be months or years away.

What the memo actually does

The Percival memo, distributed inside the Office of the Principal Legal Advisor, tells ICE attorneys that any anti-fraud effort "should include enforcement against immigration attorneys filing false asylum claims in immigration court," according to multiple US outlets that reviewed the document. It argues that ICE has historically leaned on immigration judges and the Justice Department to discipline lawyers, and that the agency has tools of its own it has not used aggressively enough.

The memo also warns of a conflict-of-interest risk: a lawyer who is the target of a fraud action should not be appearing in the same immigration case as the attorney bringing the action. That detail, buried near the end, points to one of the practical limits of the directive. Bringing administrative fraud actions against private counsel requires investigations, internal walls, and the political appetite to litigate against a bar that has so far been a relatively quiet opponent of the administration.

Percival's reasoning, set out in the memo and repeated by senior officials, is that asylum is meant for "unique and narrow circumstances," and that it has become standard practice for lawyers to claim almost any undocumented client is at risk of persecution or torture. Civil rights groups, including the American Immigration Lawyers Association, have pushed back hard, arguing that the directive is part of a broader campaign to chill representation in immigration court, where many respondents already appear without counsel.

Why this lands hard on the Kenyan asylum bar

Kenya has not been a frontline asylum-producing country in US statistics, but Kenyan claims have a familiar pattern. They tend to rest on political affiliation, on gender-based violence, on land or inheritance disputes that turn into protracted persecution, and on the threat of being trafficked through Saudi Arabia or the Gulf. Many of these claims are filed in Maryland, Massachusetts, Texas and Minnesota, the four states where the Kenyan immigrant population is most concentrated.

Lawyers who handle this work tend to fall into three buckets. There are large general-practice immigration firms, often run by African-American or Caribbean-American attorneys, that take Kenyan cases as part of a broader docket. There are smaller, often Kenyan-owned practices that build their business around the community, advertising on Diaspora radio and at Sunday services. And there is a thin layer of nonprofit clinics, mostly in big-city law schools, that take pro bono cases referred by community groups.

The new DHS posture does not target any of these by name. But the smaller practices, which often handle high volumes of asylum, withholding and Convention Against Torture claims with limited staff, are most exposed to the kind of pattern-based scrutiny the memo seems to invite. A community-facing lawyer who files dozens of similar-looking declarations a year, all attached to clients from the same Kenyan county, is the easiest target for a fraud allegation, whether or not it ultimately holds.

A small bar in a very large system

Many Kenyan respondents do not have lawyers at all. National data from the Executive Office for Immigration Review has, for years, shown that detained asylum seekers without counsel are several times more likely to lose their cases than those with representation. Inside Kenyan WhatsApp groups in Boston, Dallas and Seattle, the most common message in the past forty-eight hours has been some version of the same question: should I still file, and will my lawyer still take me?

The lawyers themselves say yes, but with caveats. Several attorneys serving the community have privately said they will be more demanding about supporting evidence, more cautious about second-hand affidavits, and more willing to turn away clients whose stories cannot be substantiated. That is, on its own terms, what the memo says it is trying to achieve. Critics warn that the same caution will sweep up legitimate claimants who simply lack documentation, including survivors of gender-based violence whose paper trails were never created in the first place.

The chilling-effect debate

Supporters of the directive, including DHS itself in its own public statement, frame it as a long-overdue assertion of fraud enforcement in a system that has been overwhelmed by what they describe as boilerplate claims. They argue that genuine refugees benefit when fraudulent cases are filtered out and adjudicators can move more quickly through the merits.

Opponents, led by AILA and a coalition of religious and civil rights groups, argue that the broader campaign against immigration attorneys, which began with a presidential memorandum earlier this year, is functionally a tax on representation. If filing an asylum claim invites scrutiny not only of the client but of the lawyer's entire practice, fewer lawyers will take the cases. In communities where word travels fast, that ripple effect can shut down a referral pipeline within weeks.

What Kenyans facing removal should do next

For Kenyans already in proceedings, immigration practitioners offer a short, practical list. Gather contemporaneous documentation now, even informal items like text messages, photographs and church letters, because lawyers will lean more heavily on independent evidence. Be candid about what cannot be proven, because lawyers under scrutiny are less willing to fill gaps with assumption. Ask any lawyer who agrees to take the case how many similar matters they have handled and how they verify country conditions, since those answers will increasingly matter in court.

Back in Lowell, the nurse said she will keep her hearing date. Her lawyer told her the memo does not change the law on asylum, only the temperature in the room where it is argued. That, for a Kenyan diaspora that has learned to read American immigration weather very carefully, may be the most important sentence of the week.