The Department of Homeland Security and the Department of Justice announced on Monday a new joint “Interim Final Rule” (IFR) that would prevent many foreign citizens from being able to seek asylum in the United States.
Under the new IFR, asylum-seekers who have not applied for protections in the country through which they were passing, and lost, would be ineligible to claim asylum upon arrival in the United States.
The IFR, which is supposed to go into effect today, would primarily impact Central Americans who travel through Mexico to reach the U.S. It is cleally targeted at citizens of El Salvador, Guatemala and Honduras (“The Northern Triangle) which rank among the most dangerous countries in the world.
“This Rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” Attorney General William Barr said in a statement. “The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.”
Acting DHS Secretary Kevin McAleenan said in his statement that the new rule “will reduce the overwhelming burdens on our domestic system.”
The Attorney General’s Statement that “This Rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” is a lie, plain and simple.
The Attorney General has rule making authority to remove an alien, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality) in which the alien’s life 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. 8 U.S.C. § 1158. (My emphasis).
The only country with which the United States has a “Safe Third Country” agreement is Canada. The Trump Administration is trying to drastically modify basic statutory asylum protections by Executive Decree.
UNHCR, the UN Refugee Agency, also voiced its deep concerns about the new “Rule” on July 15th, stating in part that:
“UNHCR believes the rule excessively curtails the right to apply for asylum, jeopardizes the right to protection from refoulement [withholding of removal protection, which is a US treaty obligation], significantly raises the burden of proof on asylum seekers beyond the international legal standard, sharply curtails basic rights and freedoms of those who manage to meet it, and is not in line with international obligations.
“According to the text of the U.S. rule, individuals entering the United States across the southern U.S. land border will be regarded as ineligible for asylum if they passed through another country first and did not attempt to seek asylum there before moving to the U.S. border, regardless of whether they had access to effective international protection in those transit countries.
“People have been leaving parts of Central America in growing numbers in recent years for reasons ranging from extreme economic deprivation to persecution. Many of them are fleeing horrific violence by brutal gangs and are in need of international protection.”
The ACLU has announced that it will challenge this illegal action in federal court.
I expect that injunctions will issue against this new “Rule” fairly quickly.