How Aliens and Their Advocates Will Try to Defeat the New Asylum Regulations

By Dan Cadman on November 22, 2019

My colleague Andrew Arthur has written an in-depth explanation of the federal government's new asylum regulations, crafted to take advantage of the recently penned bilateral agreements with Central American countries (plus, prospectively, others with which we may sign agreements in the future).

I won't go further in explaining the regulations — I encourage you to read Arthur's blog instead. But I do want to layer a few comments and prognostications onto his, and it doesn't take a crystal ball to see the future unfold where these agreements and regulations are concerned.

First, the regulatory implementation of the bilateral agreements seems fair to me, although even as I type this I'm pretty sure I hear the primal screams of migrant advocacy organizations all over the nation howling in frustration and anger: "How did this happen?"

Second, if you read carefully, there is still what might be considered an Achilles tendon in the matter: Instead of a test involving whether or not aliens have a "credible fear" only in their own country, U.S. asylum officers (AOs) and immigration judges (IJs) will now also be obliged to consider whether they may also have one in the country to which they would otherwise be sent pursuant to a bilateral agreement. Much will hinge on this since, if they can persuade an AO or IJ that they not only fear return home to, for instance Honduras, but also removal to Guatemala under a bilateral agreement ... they get to stay here to make their claim. In large numbers, this would of course undermine the entire rationale behind the rule and policy changes, and virtually ensure that we continue to experience huge numbers of illegal crossings every year, specifically including partial family units and minors, who are vulnerable to predation by smugglers and criminal opportunists at every step of the way.

On this second score, it takes little imagination to speculate in advance at how creative the stories will become in attempting to defeat removal to a third country with which the United States has a bilateral agreement. And once that wall has been breached a few times, whatever scenario it was that worked will find itself in the mainstream of stories put forward by claimants. That, after all, is how the asylum and credible fear processes fell into a shambles in the first place.

Third, and this also takes little imagination, as Arthur notes there will inevitably be a flurry of lawsuits filed in various federal district courts that have been cherry-picked as being of a suitably progressive disposition to grant nationwide injunctions against the rules, after which will once again begin the long slog to the Supreme Court of the United States (SCOTUS). As I have observed in prior blogs, the amount of time and space that immigration-related lawsuits are consuming within our appellate and highest court(s) in recent years is appalling. With limited docket time available in any one of them, this means that other, equally valid, cases brought by U.S. citizens in any number of contexts get shoved out of any possible chance at judicial review.

Fourth, and equally obvious, in filing the lawsuits, aliens through their various pro bono representatives (such as the American Civil Liberties Union, which also expends a disturbing amount of effort on behalf of illegal aliens these days, time that is not therefore spent on other issues involving hugely important matters such as the free speech rights of citizens, as the organization once did) will sling a whole quiver of arrows at the target hoping one or two might pierce, and inevitably one of those arrows will be what has become their go-to legal relief du jour, the Administrative Procedure Act. They will almost certainly argue, among other things, that the administration violated the APA by filing the proposed regulations in "interim final" form, which truncates their time and ability to object to them. Of course, that is for a good reason: Such bilateral agreements were always provided for in the relevant statutes, and having come into force, there's no reason why delay should be the watch word of the day. It's just that, well, few if any of these organizations ever thought that the United States would really pursue such agreements. Thus the primal screams.

Look out, SCOTUS, here we come again.