Immigration attorney, Abigail Mabry, writes article for Tennessee Bar Association Immigration Newsletter

Third Country Asylum Rule Barring Many Asylum Seekers

By Abigail Mabry on Tue, 08/06/2019 – 2:56pm

In yet another attempt by the current administration to change asylum regulation and procedure, the Departments of Justice and Homeland Security have issued a rule restricting eligibility for many asylum seekers who recently entered the United States or who have not yet entered. 

On July 15, the DOJ and DHS announced this new rule which bars asylum eligibility for anyone who enters the United States on or after July 16, 2019 and who enter or attempt to enter the United States across the southern land border after traveling through a third country apart from the immigrant’s country of citizenship and does not apply for protection in that third country.  For example, a Guatemalan citizen who enters the United States on or after July 16, 2019 and who does not apply for protection from persecution in Mexico will be barred from applying for asylum in the United States.  https://www.federalregister.gov/documents/2019/07/16/2019-15246/asylum-eligibility-and-procedural-modifications.

However, U.S. District Court Judge Jon Tigar in California blocked the implementation of the new rule on July 24. This decision came just hours after U.S. District Judge Timothy Kelly of Washington, D.C. ruled in the opposite direction. The nationwide preliminary injunction blocks the rule from taking effect until the court fully considers the arguments on each side and issues a final ruling in the case. But the government may ask an appellate court to reverse this decision.

In his ruling, Judge Tigar found the new rule was “inconsistent with existing asylum laws” and questioned the adequacy of the asylum system in Guatemala, the first country that many asylum seekers would be passing through on their way to the United States.  Judge Kelly ruled, in a case brought by two different immigrants’ rights groups, the asylum ban should be permitted to proceed on the basis that “it’s in the greater public interest to allow the administration to carry out its immigration policy.” We shall see how higher courts shall rule.

In any event, the rule, if allowed to go into effect, will be added to the federal asylum regulation at 8 C.F.R. § 208.13(c).  DHS Acting Secretary Kevin K. McAleenan stated this new rule will “help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border” and “reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country.”  https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule.

The interim rule contains some exceptions to this eligibility bar.  These exceptions, however, are limited to asylum seekers who demonstrate that they traveled through a country not a part of the 1941 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture.  An immigrant may also qualify for an exception to this bar if he or she was a victim of severe trafficking in persons, which is defined by the regulations. 

All seven Central American countries (Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama), as well as Mexico, are parties to the Refugee Convention and the Refugee Protocol referenced in the exception to the asylum bar.  Any immigrant who travels through one of these countries before entering the United States and does not apply for protection from persecution in that country will be barred from asylum eligibility in the United States.  The interim rule particularly mentions Mexico’s increased capacity to adjudicate asylum claims.

Interestingly, the new procedure described in the interim rule is not a “safe-third-country agreement” as is described in INA § 208(a)(2).  That section states that an immigrant is barred from applying for asylum if “the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country” apart from 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 where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”  https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim.

With the interim rule, the U.S. government hopes to ease the way in creating safe third-country agreements with some Central American countries and Mexico.  Currently, the United States has a safe third-country agreement with Canada.  President Trump has yet to sign a safe-third-country agreement with Mexico and it does not seem likely that an agreement will be signed.  On July 26, the White House announced that President Trump signed a safe third-country agreement with Guatemala.  This announcement came after news stating Guatemala’s Constitutional Court issued an injunction blocking Guatemala’s president from declaring Guatemala as a safe third country for those seeking asylum. 

It is difficult to foresee how the safe-third-country agreement with Guatemala will impact asylum procedure going forward.  The regulation states that for the safe third-country bar to apply, the third country must be one where the alien’s life or freedom will not be threatened on account of race, religion, nationality, political opinion, or membership in a particular social group.  Given the large number of asylum seekers in the United States from Guatemala, it does not seem as if Guatemala is, in fact, a safe third country wherein one can be free from persecution. 

If Guatemalan citizens are fleeing their country and applying for protection in the United States, it is highly unlikely how citizens of other countries will be free from persecution in Guatemala.  It is possible that asylum seekers who travel through Guatemala before entering the United States and do not seek protection in Guatemala may not be subject to the INA § 208(a)(2) bar, if there is evidence that the alien would not be free from persecution based on a protected ground in Guatemala. 

In 2017, 12,175 asylum applications, the third highest percentage of affirmative asylum applications came from Guatemalan citizens.  Only Venezuela and China ranked higher in affirmative asylum applications in the United States in 2017.  Guatemalan citizens also accounted for 21,223 defensive asylum applications, the second highest number of applications filed in defensive removal proceedings in immigration court.  https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf.


— Abigail (Abby) Mabry is an associate at the Cobb Law Group in Hendersonville, where she practices removal defense in immigration court as well as representation of immigrants before USCIS. Abby received her J.D. from the University of Memphis Cecil C. Humphreys School of Law. She may be reached at 615-649-0049 or abby@cobblawtn.com.

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