FederalImmigration & BorderIssuesTrump Administration’s New Asylum Rule Moves Forward, Civil Rights Groups Challenge with Lawsuit

Issued jointly by the Department of Homeland Security and Department of Justice, the new third-country asylum rule was announced last Monday and published to the federal register the following Tuesday. 

Under the new immigration policy, those seeking-asylum who first pass through another country while en route to the US must initially apply for refugee status in that country.

In the lawsuit, the three civil rights groups argue that the new third-country asylum rule is “unlawful,” “invalid,” and inconsistent with asylum provisions intended to protect individuals fleeing persecution or torture. Additionally, the complaint asserts that the new third country rule is a violation of federal laws that prevent asylum-seekers from being disqualified based on their chosen route to the United States.

The lawsuit states, “As part of our nation’s commitment to the protection of people fleeing persecution and consistent with our international obligations, it is long-standing federal law that merely transiting through a third country is not a basis to categorically deny asylum to refugees who arrive at our shores.”

By mandating that aliens apply for asylum in countries through which they first passed while en route to the US, the lawsuit argues that the new rule circumvents the “safe third country” agreement process as defined by the Immigration and Nationality Act.

According to the Department of Homeland Security, however, the new asylum policy does not violate the terms of the Immigration and Nationality Act but rather, runs in tandem with it. 

Currently, those seeking asylum are permitted to apply with exceptions for individuals who initially traveled through countries deemed “safe” by bilateral or multilateral agreements. 

At present, Canada is the only country classified as a “safe third country.”  

The new policy seeks to alleviate the strain on the immigration system from aliens who fail to seek protection in the first available safe country. 

In a statement regarding the new rule, the Department of Homeland Security said, “This IFR (Interim Final Rule) uses the authority delegated by Congress in section 208(b)(C) of the Immigration and Nationality Act to enhance the integrity of the asylum process by placing further restrictions on eligibility for aliens who seek asylum in the United States.”

The three civil rights groups also allege that the new policy is a violation of asylum provisions defined by domestic and international laws that provide protection to individuals regardless of nationality, travel route, or point of entry.

Lee Gelerent, deputy director of the Immigrants’ Rights Project at the ACLU, said in regard to the rule, “This is the Trump administration’s most extreme run at an asylum ban yet. It clearly violates domestic and international law and cannot stand.”

Two other groups, the Refugee and Immigrant Center for Education and Legal Services (RAICES) and the Capital Area Immigrants’ Rights Coalition, also filed a separate petition in the US District Court in Washington in an effort to halt implementation of the new policy.

In response to the petition filed by the two advocacy groups, a federal judge in Washington, D.C. on Wednesday issued a ruling stating he would not halt efforts to implement the new asylum policy. 

According to Attorney General William Barr, the intention of the new rule is to “decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States – while ensuring that no one is removed from the United States who is more likely than not to be tortured or persecuted on account of a protected ground.”

In the last five years, the number of asylum cases referred to the Department of Justice has nearly tripled with projections for continued increase through 2019.

The new third-country asylum rule seeks to decrease the number of asylum claims from aliens who do not possess legitimate grounds for immediate protection from persecution or torture. By reducing the number of meritless asylum claims, the new immigration policy aims to alleviate the burden currently placed on the nation’s immigration system.  

Exceptions to the third country asylum rule apply to aliens who were previously denied protection in at least one other transit country while on their way to the US, victims of human trafficking, and individuals passing through countries that are not parties to three specified international asylum treaties.

Those in the country who have already made asylum claims will not be affected by the new third-country asylum rule.

According to David Inserra, a policy analyst in homeland security and cybersecurity at the Heritage Foundation, the issuance of the new third country rule must be understood in the framework of the “family separation policy” issued in 2016. 

Under this policy, if an individual arrives at the border with a child, US authorities are not permitted to detain the child under US law. While immigration authorities were previously allowed to detain families together as a unit, the “family separation policy” allows authorities to detain only parents, not children. 

Individuals claiming asylum with a child are almost guaranteed to be released into the United States, as immigration officials are only allowed to detain parents for a designated amount of time and are most often unable to adjudicate claims within the given time frame.

Additionally, aliens who enter the US and apply for asylum are given a court date but in some instances, the individuals in question fail to show up for these hearings. This, in turn, provides a way for individuals to remain in the US illegally if they can successfully avoid notice by legal authorities.

According to Inserra, “Asylum plus these loopholes are pretty much a gold ticket into the United States” and are creating a “new generation of illegal immigrants.” 

The lawsuit filed in response to the new third policy rule is not the first challenge the Trump administration has faced in regard to immigration policy.

In November 2018, a federal judge in San Francisco blocked a similar rule that sought to prevent illegal immigrants apprehended between ports of entry from seeking asylum. That ruling was upheld by the US Courts of Appeals for the Ninth Circuit, and the Trump administration’s request for immediate enforcement of the policy was denied by the Supreme Court in December 2018.