On July 16, 2019, the United States Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), and Department of Homeland Security (DHS) issued an interim final rule (IFR) with request for comment. That IFR limits asylum eligibility for aliens who have entered or attempted to enter the United States across the Southwest border without first seeking asylum or protection under the Convention Against Torture (CAT) in a third country (that is, a country that is not the one from which they are seeking asylum or CAT) that they passed through en route to the United States. This rule, if it stands, will significantly limit the number of non-meritorious asylum claims, and the number of migrants who are seeking to enter the United States for purely economic reasons.
The huge increase in the number of aliens taking advantage of the so-called "credible fear" loophole to gain access to and entry into the United States is a prime motivating factor behind this regulation, as the IFR makes clear:
Apprehending and processing th[e] growing number of aliens who cross illegally into the United States and invoke asylum procedures consumes an ever-increasing amount of resources of DHS, which must surveil, apprehend, screen, and process the aliens who enter the country and must represent the U.S. Government in cases before immigration judges, the Board, and the U.S. Courts of Appeals. The interim rule seeks to ameliorate these strains on the immigration system.
In essence, under the IFR, an asylum applicant would be subject to a "third-country-transit bar" from eligibility for that protection if the applicant is apprehended entering or attempting to enter the United States across the Southwest border without first applying for protection in a third country that the alien passed through on the way. There are exceptions to that bar, however, for an alien who demonstrates: (1) that the alien only transited through countries that were not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the CAT, or (2) that the alien was a victim of "a severe form of trafficking in persons," as defined by regulation.
The first exception, however, is extremely limited as the IFR notes: "All seven countries in Central America plus Mexico are parties to both the Refugee Convention and the Refugee Protocol." It particularly focuses on the ability of Mexico to grant such protection:
Mexico has expanded its capacity to adjudicate asylum claims in recent years, and the number of claims submitted in Mexico has increased. In 2016, the Mexican government received 8,789 asylum applications. In 2017, it received 14,596. In 2018, it received 29,623 applications. And in just the first three months of 2019, Mexico received 12,716 asylum applications, putting Mexico on track to receive more than 50,000 asylum applications by the end of 2019 if that quarterly pace continues.
If an alien claiming credible fear is subject to this bar, the asylum officer will determine whether the alien has a "reasonable fear" of persecution or torture, as provided in 8 C.F.R. § 208.31. "Reasonable fear" is the standard currently primarily applied to aliens who were previously ordered removed from the United States and reenter illegally or without proper documents.
If an alien is shown to have a reasonable fear of persecution of torture, the alien will be placed into removal proceedings to apply for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) and 8 C.F.R. § 1208.16. To be granted withholding of removal, an alien must show that is more likely than not that the alien will be persecuted or tortured if returned home. The reasonable fear of persecution standard is the same as the "well-founded fear of persecution" standard for asylum relief. Ensuring that aliens have access to withholding of removal satisfies the United States' international treaty obligations under the 1967 Protocol and CAT, as the IFR makes clear.
If an alien is found not to have a credible fear under the "third-country-transit eligibility bar," or to have a reasonable fear, the alien may seek review of those determinations by an immigration judge in accordance with section 235(b)(1)(B)(iii)(III) of the INA. Should the immigration judge find that the third-country-transit eligibility bar does not apply, the alien will be placed in removal proceedings under section 240 of the INA to apply for asylum. Where the immigration judge determines that bar does apply, but that the alien does have a reasonable fear of persecution or torture, the alien will be placed in removal proceedings in order to apply for withholding of removal. If the immigration judge determines the bar does apply, and that the alien does not have a reasonable fear of persecution or torture, the alien will be removed.
The IFR notes that it is consistent in practice with the processes in the European Union (EU) under the so-called "Dublin III Regulation." As the IFR states, under Dublin III:
Typically, for irregular migrants seeking asylum, the member state by which the asylum applicant first entered the EU "shall be responsible for examining the application for international protection." . . . . Generally, when a third-country national seeks asylum in a member state other than the state of first entry into the EU, that state may transfer the asylum-seeker back to the state of first safe entry.
It should be noted that the procedure set forth in the IFR is not a "safe-third-country agreement," however, which would provide an exception to asylum under section 208(a)(2) of the INA. That section states that an alien is not eligible to apply for asylum if "the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country" other than the alien's home country "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 in which the alien could apply for asylum. The only country with which the United States currently has such an agreement is Canada. Rather, it is a policy determination that such aliens should avail themselves of asylum protection in a country where it is available to them that they transited on the way to the United States.
Interestingly, however, the IFR states that it "aims to aid the United States in its negotiations with foreign nations on migration issues." Specifically:
Addressing the eligibility for asylum of aliens who enter or attempt to enter the United States after failing to seek protection in at least one third country through which they transited en route to the United States will better position the United States as it engages in ongoing diplomatic negotiations with Mexico and the Northern Triangle countries (Guatemala, El Salvador, and Honduras) regarding migration issues in general, related measures employed to control the flow of aliens into the United States (such as the recently implemented Migrant Protection Protocols), and the urgent need to address the humanitarian and security crisis along the southern land border between the United States and Mexico.
Thus, for example, it would place the United States in a better position to conclude safe-third-country agreements with those countries.
The IFR has the potential to significantly diminish the number of non-meritorious asylum and CAT claims, making it more likely that aliens with valid claims will receive asylum relief in a timely manner. It will also help to cut into the immigration-court backlog. The IFR notes that: "There are more than 900,000 pending cases in immigration courts, at least 436,000 of which include an asylum application."
I expect that the IFR will be subject to judicial challenge within short order. Although there is a high probability that it will be enjoined at the district-court and potentially circuit-court levels, there is strong reason to believe that the Supreme Court will uphold the rule. Specifically, section 208(b)(3)(C) of the INA states: “The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under” paragraph 208(b)(1) of the INA. This is broad authority, which Congress may circumscribe as it sees fit. Until that happens, however, that authority remains.
Nor is the IFR inconsistent with 208(a)(1) of the INA. That provision states:
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 in accordance with this section or, where applicable, [the credible-fear provisions in] section 235(b) [of the INA].
It is important to note the distinction within section 208 of the INA between the ability of an alien to "apply for asylum" in subsection (a) and the alien's ineligibility to receive that protection under subsection (b). Any alien may apply for asylum, but not every alien who applies for that protection is eligible for it.
The same is true, through implication and operation of law, of credible fear. Section 235(b)(1)(B)(v) of the INA defines "credible fear of persecution." It states:
For purposes of this subparagraph, the term "credible fear of persecution" means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208 [of the INA] (Emphasis added).
Given the massive loophole that the current credible fear process has created to an orderly system of immigration to the United States, it was correct for EOIR and DHS to act. As the IFR states, "the rule seeks to curtail the humanitarian crisis created by human smugglers bringing men, women, and children across the southern border." It continues:
By reducing the incentive for aliens without an urgent or genuine need for asylum to cross the border—in the hope of a lengthy asylum process that will enable them to remain in the United States for years, typically free from detention and with work authorization, despite their statutory ineligibility for relief—the rule aims to reduce human smuggling and its tragic effects.
I have detailed those effects previously in Congressional testimony, as the Homeland Security Advisory Council's CBP Families and Children Care Panel also did in its April 16, 2019, "Final Emergency Interim Report".
To protect our national sovereignty, and reduce suffering along the border, it is time for the third-country-transit eligibility bar. Now, it is up to our neighbors and allies to act.