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Court Blocks Administration’s Asylum Rule Changes

Invoking emergency national-security measures, the Administration has continued its attack on our Asylum laws, which are based on international obligations and adopting U.S. laws more than 50 years old.  Changes to the laws, described below, would eviscerate US asylum law if upheld and, as expected, are under challenge in the U.S. courts.

On November 9, 2018, President Trump signed a presidential proclamation that would limit the ability of some immigrants to claim Asylum. The new fast-tracked rule, published by the Department of Justice (DOJ) and the Department of Homeland Security (DHS), would bar individuals from applying for Asylum unless they enter the United States at official Ports of Entry. The ban would be in effect for ninety days or until the United States and Mexico sign an agreement making Mexico a “safe third country,” which might further prevent Asylum applications based on the internationally-agreed principle that an alien “firmly resettled” in another country is ineligible for Asylum in another country.  By the end of the ninety-day period, the Attorney General must recommend whether or not to extend the new rule.

The American Immigration Lawyers Association (AILA) issued a policy brief criticizing the rule change and pointing to the difficulties many Asylum seekers face at U.S. Ports of Entry. US Custom and Border Patrol (CBP) agents use “metering” to turn away Asylum seekers arriving at designated ports of arrival, basically telling these immigrants to “come back later.” AILA notes, “Upon returning, they frequently receive the same instructions, creating a cycle of deferrals that in many cases functionally prevents them from applying for Asylum at designated checkpoints.” Human right groups have reported that Asylum seekers often face waits of 3 – 6 weeks, frequently in poor and dangerous conditions, before their cases are processed.

Immigrants who are barred from seeking Asylum because they did not enter the United States at a designated port of arrival can still seek humanitarian relief through other immigration provisions, specifically Withholding of Removal or protection under the Convention Against Torture (CAT).  Asylum is preferable to Withholding or CAT protection, since its protections are more permanent. Also, it is harder to prove eligibility for Withholding or CAT than for Asylum.

DHS explained why the rule change is necessary: “Our system is currently overwhelmed by unchecked mass immigration, particularly at our Southwest border.” AILA’s response is, “overall CBP apprehensions—the closest proxy for border crossings—are markedly low by historical standards. From the 1980s through mid-2000s, southwest border apprehensions regularly exceeded 1 million annually. By contrast, in FY 2018, the total was under 400,000…” This number of apprehensions was “the fifth lowest total since 1973.”

After the Trump administration published the new rule, several organizations, including the American Civil Liberties Union, the Southern Poverty Law Center and the Center for Constitutional Rights, filed suit. They argued that the new regulation violated immigration law, which states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for Asylum…”

On November 19, 2018, United States District Court Judge Jon Tigar issued a temporary restraining order against further implimentation of the new rule, after concluding plaintiffs likely would prevail at trial . Referring to the nation’s Asylum statutes and regulations, he stated, “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” The judge also expressed concern that delays caused by the new rule would expose Asylum seekers to “increased risk of violence and other harms at the border.” Judge Tigar set a court date of December 19 for another hearing on the new Asylum rule.

DOJ said in a court filing that it will appeal the Order.

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