Supreme Court Allows Trump's Third Country Asylum Bar

What happened?

This summer, the Trump administration announced a new interim rule that would require asylum seekers to prove that they had applied for and been denied asylum in at least one of the countries they passed through before reaching the US. The ACLU and other organizations filed a lawsuit in the Ninth Circuit to challenge that rule. While the lawsuit is pending, the organizations asked the courts to stop the government from implementing the new rule. On September 11, 2019, the Supreme Court ruled to allow the Trump Administration to move forward with its plan to restrict asylum eligibility while the underlying lawsuit makes its way through the court system.

What is the new rule?

This directive from the administration would make migrants who have passed through another country on their way to the southern border of the United States without first seeking asylum protections there ineligible for asylum. While the largest group of migrants affected by this change would be those from Honduras, Guatemala, and El Salvador, it is very common for asylum seekers from throughout the world to have passed through another country before arriving in the United States and requesting humanitarian protection from persecution. In recent years, large numbers of migrants from several African countries, parts of Asia, and Haiti have traveled to South America or Central America and then made their way to the US southern border to request asylum.

How does this change existing asylum law?

As it is currently written, U.S. immigration law allows a migrant to request asylum upon arrival at the U.S. border irrespective of how they arrive. The only exception is for a migrant who has come through a “safe third county.” The definition, however, is vague on what is considered “safe,” and relies on bilateral agreements to establish safe third country status. Currently, the U.S. has only one agreement establishing Canada as a “safe third county.” The new rule does not require that the migrant passed through a “safe” country. They are required to have applied for asylum if they passed through any country at all on the way to the US.

Will asylum applicants be turned away at the border?

The rule only applies to arrivals at the southern border after July 15, 2019. Because the rule is so new, it is difficult to evaluate exactly how the administration will implement it. However, even if a migrant is barred from asylum by the new rule, they may be eligible for other fear-based relief, such as withholding of removal or protection under the Convention Against Torture. Therefore, the government should still allow them to enter the US and schedule a hearing before an Immigration Judge, where they can fully present their evidence. The Immigration Judge must then also evaluate whether the migrant passed through a third country and whether the migrant can prove that they applied for and were denied protection in at least one third country.

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