Give Me(xico) Your Tired, Your Poor: The Trump Administration’s Third-Country Asylum Bar

Polina Hristova, Notes Editor (‘20)

On July 16, 2019, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued a joint interim final rule that rendered ineligible for asylum any person “who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country . . . through which the alien transited en route to the United States.”[1] The rule effectively created a categorical bar against most Central Americans, including unaccompanied children, traveling through Mexico to apply for asylum at the United States border.[2]

Section 1158(a)(1) of the United States Code provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . may apply for asylum in accordance with this section, or where applicable, section 1225(b) of this title.”[3] While the asylum process is exceedingly complex in theory and in practice, its “core regulatory purpose” is to “protect [refugees] with nowhere else to turn.”[4]

Eight days after the DOJ and DHS published the rule, the District Court for the Northern District of California granted a nationwide, preliminary injunction to postpone its execution, holding in part that the rule is likely inconsistent with existing asylum law.[5] The district court held that the rule likely contravenes the “firm resettlement bar”[6] and the “safe third country bar”[7] as codified by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.[8] Both statutory bars recognize that asylum may be denied if an applicant has a safe, alternative resettlement option.[9]

After being provided significant evidence that asylum seekers transiting through Mexico suffer disproportionate abuse, retaliation, and exploitation,[10] the district court was persuaded that the rule, in violation of the statute, “ignore[d] an applicant’s individual circumstances and categorically deem[ed] most of the world a ‘safe option.’”[11] The district court also made light of evidence that Mexico’s asylum procedure is fraught with considerable substantive and procedural defects that work to strip asylum seekers of any realistic protections.[12]

The government appealed the district court’s order to the Ninth Circuit and moved for a stay pending appeal.[13] The Ninth Circuit denied the motion as it applied within its own circuit but granted it as it applied nationwide, essentially making the injunction effective only within the Ninth Circuit.[14] The Ninth Circuit, however, preserved the district court’s jurisdiction to “further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”[15] On September 9, 2019, the District Court for the Northern District of California restored the nationwide scope of the injunction.[16] Only two days later, the Supreme Court stayed in full both of the district court’s orders pending resolution of the government’s appeal and writ of certiorari, “if such writ is sought.”[17]

The Court’s short, unsigned order drew fierce criticism from Justice Sotomayor, who was joined in dissent by Justice Ginsburg.[18] “Once again,” Justice Sotomayor wrote, “the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution.”[19] Justice Sotomayor further stated that the rule “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.” The dissenters denounced the Court’s haphazard approach and lack of restraint, noting that a “stay pending appeal is ‘extraordinary’ relief” and the government did not meet its respective burden.[20]

Immigrant rights attorneys and activists urge that the rule cuts against Congress’s clear intent in the Refugee Act of 1980 to have an “open-door policy for asylum seekers.”[21] Lawyers for the American Civil Liberties Union (ACLU) added that the court should not endorse the executive branch’s misplaced legislative agenda.[22] The government countered that the rule encourages efficiency and will “alleviate a crushing burden on the [United States] asylum system.”[23]

While the issue remains whether the executive branch can effectively ban Central American migration by imposing a neoteric blanket restriction on asylum eligibility, Central American migrants continue to endure a perilous trek through Mexico to invoke a statutory right that has been recognized and implemented in the United States for nearly four decades. In the face of addressing an overburdened asylum system, the United States must not fail to forget its “strong humanitarian tradition and . . .  unique historic role as a haven for persons fleeing oppression.”[24]

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* Title quoting Emma Lazarus, The New Colossus (1883).

[1] Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 136 (July 16, 2019) (to be codified at 8 C.F.R. pt. 208, 8 C.F.R. pts. 1003 and 1208).

[2] See id.

[3] 8 U.S.C. § 1158(a)(1) (2006).

[4] Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013) (quoting Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)).

[5] See E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). The district court also held that the government’s invocation of foreign affairs exception to bypass of notice-and-comment procedures under the Administrative Procedure Act (APA) raised serious questions. See id. at 930.

[6] The “firm resettlement bar” bars asylum for a person who was offered a form of permanent resettlement upon entering or while in another country. See 8 C.F.R. § 208.15.

[7] The “safe third country bar” gives the Attorney General discretion to deny asylum if he or she determines that “the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.” 8 U.S.C. § 1158(a)(2)(A). The bar does not apply to unaccompanied children. See 8 U.S.C. § 1158(a)(2)(E).

[8] See id. at 939–46.

[9] See id.

[10] See id. at 953–54.

[11] Id. at 946.

[12] See id. at 954.

[13] See E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 (9th Cir. 2019).

[14] Id.

[15] Id. at 1031.

[16] See E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974, 976 (N.D. Cal. 2019).

[17] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019).

[18] See id. at *1.

[19] Id.

[20] Id. at *2.

[21] David G. Savage, Supreme Court Rules for Trump on Asylum Ban at Southern Border, L.A. Times, Sept. 11, 2019, https://www.latimes.com/politics/story/2019-09-11/supreme-court-rules-for-trump-on-asylum-ban-at-southern-border.

[22] See id.

[23] Id.

[24] Deborah Anker, The Refugee Act of 1980: An Historical Perspective, 5 In Defense of the Alien 89, 89 (1982).