Asylum Bar for Migrants Who Reach the Southern Border through Third Countries: Issues and Ongoing Litigation

Asylum Bar for Migrants Who Reach the Southern Border through Third Countries: Issues and Ongoing Litigation

Legal Sidebari

Asylum Bar for Migrants Who Reach the
Southern Border through Third Countries:
Issues and Ongoing Litigation
Updated September 13, 2019
Update (September 13, 2019): The Supreme Court granted the Trump Administration a stay on September
11, 2019, that allows the Administration to implement the interim final rule (IFR) without restriction
while litigation concerning the legality of the IFR moves forward. The stay will remain in place until the
Supreme Court resolves any appeal from the ongoing proceedings in the Northern District of California
and the U.S. Court of Appeals for the Ninth Circuit. Justices Sotomayor and Ginsburg dissented from the
grant of the stay. According to media reports, the Administration had begun implementing the IFR
nationwide the day after obtaining the stay. The upshot of the Supreme Court’s ruling is that, at least for
the foreseeable future, the Administration may apply the IFR to limit asylum eligibility for migrants who
reach the southern border through third countries.
Update (August 16, 2019): As a result of litigation following the original publication of this Sidebar, the
Trump Administration may implement the IFR to limit asylum eligibility in Texas and New Mexico but not
in California or Arizona. On August 16, 2019, a motions panel of the U.S. Court of Appeals for the Ninth
Circuit granted the Administration a partial stay of the preliminary injunction against the IFR, narrowing
the injunction to apply only in states within the Ninth Circuit. The panel held that the Administration had
not shown that it was likely to succeed on the merits of its arguments about the legality of the IFR, but
that the “nationwide scope of the injunction is not supported by the record as it stands.” The circuit court
indicated, however, that additional proceedings in the district court might “further develop the record in
support of a preliminary injunction extending beyond the Ninth Circuit.” One judge on the panel
dissented from the decision to narrow the injunction.
As a consequence of the stay decision, no federal court order currently bars implementation of the IFR
along the part of the U.S.-Mexico border that is outside of the Ninth Circuit (i.e., in Texas and New
Mexico). New legal developments could come quickly, however. Proceedings in the district court in the
Northern District of California remain ongoing and could produce another nationwide injunction, as
indicated above. Meanwhile, a merits panel of the Ninth Circuit is set to review the original preliminary
injunction in December. Furthermore, either party could appeal the circuit court’s stay decision to the
Supreme Court. Litigation also remains ongoing in the U.S. District Court for the District of Columbia,
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where a different set of plaintiffs continues to challenge the IFR after the district court rejected their
motion for a temporary restraining order blocking implementation pending further proceedings.
The original post from August 2, 2019 is below:
On July 16, 2019, the Department of Homeland Security (DHS) and the Department of Justice (DOJ)
jointly issued an interim final rule (IFR) that, if allowed to go into effect, would render non-U.S. nationals
(aliens) ineligible for asylum in the United States if they arrive at the southern border without first
seeking protection from persecution in other countries through which they transit. The IFR would apply
both to unlawful entrants and to aliens who present themselves at ports of entry on the southern border.
The IFR would probably foreclose the asylum claims of almost all non-Mexican nationals who reach the
southern border and would make it easier for DHS to swiftly remove such aliens without full proceedings
in immigration court if they lack visas or other valid entry documents.
However, the IFR is not currently in effect. On July 24, 2019, the U.S. District Court for the Northern
District of California issued a preliminary injunction blocking the IFR’s implementation nationwide while
a lawsuit challenging its legality moves forward. In contrast, the U.S. District Court for the District of
Columbia declined on the same day to issue an order blocking the IFR’s implementation pending the
outcome of a similar lawsuit there. (The judge for the D.C.-based district court reportedly issued his
decision from the bench, and a written version of the decision does not appear to have yet been made
available.)
As has occurred with other Trump Administration asylum policies in the past year, the Administration’s
ability to implement the IFR in the near-to-medium term will likely depend upon decisions by the federal
courts of appeals and perhaps the Supreme Court. Earlier this year, the U.S. Court of Appeals for the
Ninth Circuit allowed the Trump Administration to enforce its Migrant Protection Protocols (also known
as the MPP or the Remain in Mexico policy), pending further court proceedings, after a district court had
initially barred the Administration from doing so. On the other side of the ledger, late last year the Ninth
Circuit blocked the Administration from implementing a different rule that would have barred asylum
claims by unlawful entrants at the southern border (again, pending further proceedings about the rule’s
legality); the Supreme Court, by a five to four vote, denied the Administration’s request for a stay of the
Ninth Circuit’s decision.
Depending on the litigation strategy that the Administration pursues, the Ninth Circuit could decide in the
coming weeks whether to allow the Administration to enforce the IFR pending further proceedings in the
litigation.
Background on the IFR and Related Law
Asylum is a discretionary form of humanitarian protection for certain aliens who face persecution in their
country of origin (or last habitual residence) on account of one of five protected grounds: race, religion,
nationality, membership in a particular social group, or political opinion. Under the asylum statute, aliens
encountered or apprehended at the southern border may generally apply for asylum (subject to certain
exceptions), even if they enter the country unlawfully between ports of entry. The statute gives the
executive branch some authority to curtail eligibility for asylum by regulation. But as explained later,
whether this authority goes far enough to sustain the IFR is a disputed legal issue.
The IFR would make aliens ineligible for asylum if they arrive at the southern border after traveling
through at least one “third country” (that is, a country other than the alien’s country of citizenship or last
habitual residence) without seeking protection from persecution in the third country. Thus, if Border
Patrol apprehends a national of Guatemala at the southern border who has traveled through Mexico
without applying to the Mexican government for protection from persecution, the Guatemalan national
would be ineligible for asylum in the United States under the IFR. The same would be true of a Honduran

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national who transits through Guatemala and Mexico: if he does not seek protection from at least one of
those two countries, he would be ineligible for asylum in the United States. If the IFR goes into effect,
aliens arriving at the southern border who would remain eligible for asylum under the IFR would be
limited to (1) Mexican nationals, assuming they do not somehow transit through another country en route
to the border; (2) nationals of other countries who reach U.S. territory without going through third
countries (e.g., who travel to the U.S. side of the border by air directly from their home countries); and (3)
aliens who transit through third countries where they could not have obtained protection due to one of
three reasons identified in the IFR (because they received a final judgment denying them protection in at
least one third country, because they were being trafficked, or because none of the third countries through
which they transited grant protections from persecution under international agreements).
At the border, the bottom-line impact of the IFR would be to subject claims of persecution by non-
Mexicans who lack valid entry documents to a stricter threshold assessment that would enable DHS to
remove more of these aliens quickly, without full proceedings in immigration court. This is because DHS
would apply the new eligibility bar during the expedited removal process, when asylum officers screen
claims of persecution made by aliens who arrive at the border without valid entry documents to determine
if the claims have sufficient merit to warrant formal removal proceedings before an immigration judge.
Under the IFR, any alien subject to the third-country transit bar would automatically fail the screening test
for asylum claims, known as the “credible fear” standard. DHS would then screen the aliens’ claims of
persecution under a stricter test, known as the “reasonable fear” standard, to assess the alien’s eligibility
for two other forms of humanitarian protection that have higher standards of proof: withholding of
removal and relief under the Convention against Torture (CAT). Under current regulations, without the
IFR in place, the stricter “reasonable fear” standard applies only to certain aliens with prior orders of
removal or criminal convictions that subject them to removal procedures in which only withholding and
CAT protection—and not asylum—are available. Under the IFR, however, the reasonable fear standard
would become the operative screening standard for all aliens who express a fear of persecution and who
are subject to the third-country transit bar. The impact could be considerable. According to recent DHS
statistics, whereas about 78% of aliens who express a fear of persecution satisfy the credible fear
standard, about 32% satisfy the reasonable fear standard. Thus, if the IFR were to go into effect, a much
higher percentage of persecution-based claims made by non-Mexican nationals at the border would likely
fail at the screening stage and result in swift removal without full proceedings in immigration court,
because almost all of these claims would become subject to the stricter reasonable fear screening
standard.
Justifications for the IFR
In the preamble to the IFR, the agencies identify three primary justifications for it. First, they contend that
the rule is necessary to combat a rise in “meritless asylum claims” that “places an extraordinary strain on
the nation’s immigration system.” The agencies reason that asylum claims “may be” meritless if made by
aliens who “transited through another country where protection was available, and yet did not seek
protection.” The agencies note that the countries through which aliens are most likely to transit to reach
the southern border—Mexico and every Central American country—are parties to international
agreements regarding the protection of refugees and asylees (although, as noted below, the California
district court held that the agencies had ignored evidence of inadequacies in Mexico’s asylum system).
Second, the agencies maintain that the IFR has a humanitarian purpose: it “prioritizes individuals who are
unable to obtain protection from persecution elsewhere” and “aims to reduce human smuggling and its
tragic effects” by “reducing the incentive for aliens without an urgent or genuine need for asylum to cross
the border.” Third, the agencies contend that the rule will give the United States leverage in diplomatic
negotiations with Mexico and the Northern Triangle countries “regarding migration issues in general . . .
and the urgent need to address the humanitarian and security crisis along the southern land border.”

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Legal Issues and District Court Rulings
The primary legal issue that the IFR raises is whether it exceeds the authority that Congress gave to the
executive branch under the Immigration and Nationality Act (INA) to restrict asylum eligibility by
regulation.
The asylum statute contains various provisions about eligibility. At the outset, it provides that “[a]ny 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 . . .), irrespective of such alien's status, may apply for asylum in accordance
with this section.” It goes on to specify certain restrictions on eligibility, such as for aliens convicted of
aggravated felonies and aliens who have been denied asylum in the past.
Significantly, however, the statute also delegates to DHS and DOJ—the two agencies responsible for
administering the statute—some authority to establish further restrictions on eligibility, above and beyond
those that Congress established legislatively. Specifically, the statute says that the agencies “may by
regulation establish additional limitations and conditions, consistent with this section, under which an
alien shall be ineligible for asylum.” Put differently, the agencies have authority to restrict eligibility for
asylum, but their restrictions cannot contravene any provision of the asylum statute. The question,
therefore, becomes whether the third-country transit bar is “consistent with” the rest of the statute. (The
litigation over the Administration’s November 2018 rule that would have made unlawful entrants at the
southern border ineligible for asylum has thus far turned on this same issue. The Ninth Circuit held that
that bar likely was not “consistent with” the statutory provision specifying that aliens “physically present”
in the United States may apply for asylum regardless of whether they arrive through “a designated port of
arrival.”)
The chief argument against the IFR is that it is not “consistent with” the asylum statute because the IFR
undermines two statutory provisions that already limit eligibility based on considerations concerning third
countries: the firm resettlement provision and the safe third country provision. The firm resettlement
provision renders aliens ineligible if they were “firmly resettled in another country prior to arriving in the
United States.” An alien is only “firmly resettled” under this provision if a third country has offered him
permanent legal status or some other form of permanent resettlement in the country. Next, the safe third
country provision renders aliens generally ineligible to apply for asylum in the United States if they may
be removed “pursuant to a bilateral or multilateral agreement” to a third country where they would not
face a threat of persecution and where they would have access to a “full and fair” asylum application
procedure. Opponents of the IFR argue that it makes an end-run around the protective limitations of these
two statutory bars: instead of rendering aliens ineligible only when they’ve received permanent legal
status in a third country (as under the “firmly resettled” bar), or only when the United States has entered
into a formal agreement with a safe third country with fair asylum procedures (as under the safe third
country bar), the IFR makes aliens ineligible based on the mere fact that they’ve transited through a third
country without seeking protection from that country before traveling to the United States.
The U.S. District Court for the Northern District of California agreed with this argument, concluding that
the bar for third-country transit likely violates the INA because it “fundamentally conflicts with the
[approach] Congress took in enacting mandatory [eligibility] bars based on a safe option to resettle or
pursue other relief in a third country.” In contrast, according to reports, the U.S. District Court for the
District of Columbia expressed “strong doubts” that this argument would succeed, although a written
version of the district court judge’s reasoning does not appear to be publicly available.
Plaintiffs in the lawsuits challenge the IFR on other grounds as well. They contend that the agencies’
failure to follow notice and comment procedures before promulgating the rule makes it invalid on
procedural grounds under the Administrative Procedure Act (APA). They also contend that the rule is
substantively invalid under the APA because the agencies did not provide adequate justifications for the

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rule, particularly in light of evidence that Mexico’s asylum system does not offer a safe, alternative option
for aliens who would be barred from asylum in the United States. The Northern District of California held
that both of these arguments are likely to succeed on the merits as well.
Considerations for Congress
Like other major immigration cases of recent years, the central question in the litigation over the validity
of the new asylum rule is whether the executive branch has properly exercised the authority that Congress
delegated to it in the INA, or whether the rule goes beyond that authority. There would be little question
about Congress’s authority to implement a similar rule through legislation or to otherwise amend the
asylum statute or other aspects of immigration law as it sees fit.
Congress is currently considering various bills to amend the immigration laws in response to
circumstances at the border. In the House, one bill under discussion (the Homeland Security Improvement
Act, H.R. 2203) would address the treatment of aliens who claim a fear of persecution at the border,
including by limiting family separation and imposing harder limits on the length of detention in
temporary facilities. In addition, the bill would terminate the IFR, the Migrant Protection Protocols, and
the Administration’s metering policy for asylum seekers at ports of entry. Bills introduced in the Senate
(the Stop Cruelty to Migrant Children Act, S. 2113; the Protecting Families and Improving Immigration
Procedures Act, S. 1733) would also focus upon improving conditions for migrants at the border and
restricting family separation. In a different vein, another bill in the Senate (the Secure and Protect Act of
2019, S. 1494) would, among other measures, require asylum seekers from the Northern Triangle
countries to apply for protections at U.S. refugee processing centers abroad and render them ineligible to
apply for asylum in the United States. That bill would also mandate the hiring of 500 new immigration
judges and allow DHS to detain family units for up to 100 days, with an eye towards enabling DHS to
keep families in custody until an immigration judge decides their asylum claims. At least one other bill
would establish in-country refugee processing in the Northern Triangle without limiting asylum eligibility
at the border.
Barring a legislative enactment addressing the situation at the border, the primary legal
developments in response to that situation will continue to play out between the executive branch
and the courts.

Author Information

Ben Harrington

Legislative Attorney

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