Border and Enforcement News

Siskind Summary: The Suspension of Asylum Eligibility and Presidential Proclamation

By Greg Siskind

***

U.S. District Judge Jon Tigar suspended the Trump administration’s rule which placed limitations on the number of immigrants permitted to request asylum. Below is Greg Siskind’s summary of the court decision.

***

The Trump Administration’s Department of Justice and Department of Homeland Security are jointly issuing an interim final rule barring individuals found to have violated a presidential proclamation concerning entrants on the southern border of the US from pursuing asylum claims. Such individuals would be barred from filing asylum claims and would “channel” inadmissible aliens to ports of entry where they would be permitted to apply for asylum. A proclamation has not yet been issued and the rule is meant to apply prospectively to asylum claims pursued after the rule is effective. It does not apply to an earlier proclamation that created an exception for asylum applicants. DOJ is amending rules so aliens who establish a reasonable fear of persecution or torture could seek withholding of removal or protection from removal under Article 3 of the Convention Against Torture.

The rule’s effective date is not stated. There will be a 60-day comment period beginning when the rule is officially published (this summary is based on a final draft posted online by DOJ).

1. Public Participation – Run down on the comment process
2. Purpose of This Interim Final Rule

The rule governs eligibility for asylum and screening procedures for aliens subject to a presidential proclamation or order restricting entry under INA Section 212(f), which was the basis of the travel ban, or INA Section 215(a)(1) that concerns the entry to the US along the southern border with Mexico. The rule would bar asylum eligibility for people who enter the US in violation of a 212(f) or 215(a)(1)-based proclamation issued after the effective date of the rule. DOJ notes that the rule won’t apply if the proclamation has carve outs for asylum applicants or are eligible for a waiver.

DOJ begins by noting that asylum is a discretionary, generally benefit available to those in the US irrespective of their status. But Congress has provided for bars on eligibility in some cases and limitations in others. For example, DOJ cites the “credible fear” rules allowing the detention of individuals who fail a credible fear screening.

DOJ notes that 20 years ago when the credible fear screening rules started along the southern border, there were far fewer asylum applications that in recent years. Most of those aliens enter without inspection via the southern border. The percent of people picked and subjected to expedited removal who are requesting asylum has increased from 5% to 40% in the ten years between 2008 and 2018. The percent of findings of credible fear has also increased (up to 89% in recent years). But, according to DOJ, a significant number of these people never file an application for asylum or are ordered removed in absentia.

DOJ argues that it’s expensive to surveil, apprehend and process these individuals and DOJ/DHS lack the proper resources. They also cite the Flores Settlement as draining resources. DOJ cites to a figure of 2000 encounters a day between US officials and intending immigrants at the southern border. They then go on to cite “large caravans” of individuals from Central America many of whom seek to enter the US rather than being inspected at a port of entry. Negotiations with Central American countries have not yielded benefits.

This rule would be consistent with a policy President Trump has determined to be in the national interest. The new policy would encourage people to file claims at ports of entry rather than by coming without inspection. Aliens who enter without following Trump’s mandate would not be eligible for asylum.

DHS anticipates that a large number of people subject to the proclamation would eventually be subject to expedited-removal. They may still seek withholding of removal with its very strict rules.

III. Background

1. Joint Interim Rule

The Attorney General (AG) and the Secretary of Homeland Security (DHS Secretary) are jointly publishing this joint rule because DOJ is in charge of the immigration courts and DHS is charged with adjudicating asylum petitions and with immigration enforcement.

1. Legal Framework for Asylum

The agencies lay out a basic analysis of asylum under INA Section 208. But even for people demonstrating eligibility for asylum “Once an applicant has established eligibility…it remains within the Attorney General’s discretion to deny asylum.” Thus, the alin bears the burden of showing both eligibility for asylum and the AG or DHS Secretary should exercise discretion to grant relief.

If evidence indicates that one or more of the grounds for mandatory denial may apply, an alien must show that he or she doesn’t fit within one of the statutory bars to granting asylum and is not subject to any “additional limitations and conditions … under which an alien shall be ineligible for asylum.” The INA bars asylum for 1) persecutors, 2) dangerous criminals, 3) those who’ve committed serious nonpolitical crimes before entering the US, 4) national security threats, 5) terrorists, or 6) those firmly resettled in another country prior to arriving in the US.

Asylum applicants bear the burden of showing that the AG or DHS Secretary should exercise discretion to grant asylum. The Administration cites Komarenko v. INS (1994) to say that this discretion is a “broad delegation of power.” Under the Board’s decision in Matter of Pula (BIA 1997), an alien’s manner of entry or attempted entry is a proper and relevant discretionary factor” and “circumvention of orderly refugee procedures” can be a “serious adverse factor.”

1. Establishing Bars to Asylum

This section outlines changes Congress has made to the asylum system since it was established in 1980. They note the statutory list of exceptions allowing a denial of asylum but assert that “the statutory list is not exhaustive” noting that Congress, in the 1996 Act, authorized DOJ/DHS to expand on the criminal sections including “additional particularly serious crimes (beyond aggravated felonies) through case-by-case adjudication.”

DOJ/DHS has the authority to “establish additional limitations and conditions, consistent with INA Section 208, under which an alien shall be ineligible for asylum.” This has in the past been used to justify rules on fraud and on changed country conditions. DOJ/DHS asserts it has the discretion to further define particularly serious crimes and serious nonpolitical offenses.

1. Other Forms of Protection

DOJ/DHS notes that those barred from applying for asylum may still have other protections such as withholding of removal under INA 241(b)(3) as a defensive application in removal proceedings.

1. Implementation of Treaty Obligations

DOJ/DHS assert that this rule complies with US treaty obligations under the 1967 Protocol Relating to the Status of Refugees as well as US obligations under the Convention Against Torture. The treaties aren’t directly enforceable in US law, though some provisions have been incorporated into US law. DOJ/DHS state that as long as withholding of removal or CAT protection are available, those treaties are not violated. Also, the Refugee Convention doesn’t require the US to grant asylum to all refugees and the US has the right to create new bars.

1. Regulatory Changes
2. Limitation on Eligibility for Asylum for Aliens Who Contravene a Presidential Proclamation under Section 212(f) or 215(a)(1) of the INA Concerning the Southern Border

Pursuant to INA 208(b(2)(C), DOJ/DHS are revising 8 CFR 208.13(c) and 8 CFR 1208.13(c) to a new mandatory bar on eligibility for asylum for certain aliens who are subject to a presidential proclamation suspending or imposing limitations on their entry to the US pursuant to section 212(f) of the INA or section 215(a)(1) of the INA. The bar would only apply prospectively to people entering the US after such a proclamation. Also, the proclamation must concern entry at the southern border and would not apply if the proclamation disclaims affecting asylum eligibility for aliens within its scope or provides a waiver or exception process.

The rule’s authority is based on Trump v. Hawaii, the Supreme Court case that upheld the travel ban earlier this year.

An alien who enters the US in contravention of a proclamation would be placed in expedited removal proceedings under section 235 and be permitted to raise claims that would protect the person from removal (such as withholding or a CAT claim).

The AG/DHS Secretary have determined that they should exercise their authority to render ineligible for a grant of asylum any alien who is subject to a proclamation suspending or restricting entry along the southern border with Mexico but who nonetheless enters the US after the proclamation goes into effect. “Such an alien would have engaged in actions that undermine a particularized determination in a proclamation that the President judged as being required by the national interest: that the alien should not enter the United States.” “Such proclamations generally reflect sensitive determinations regarding foreign relations and national security that Congress recognized should be entrusted in the President.” The rule is also being implemented to “channel” asylum applicants to ports of entry to file their claims.

The Administration notes that they’ve limited the scope of the regulation by making it prospective, limiting it to illegal entries along the southern border, and wouldn’t apply to proclamations that exempted asylum applicants.

The bar will apply even if the proclamation expires. Otherwise, it would encourage people to enter and try and evade detection until the proclamation expires.

1. Screening Procedures in Expedited Removal for Aliens Subject to Proclamations

The rule modifies the process for screening claims for protection asserted by aliens who entered in contravention of a proclamation and who are subject to expedited removal under INA 235(b)(1). Under current procedures, aliens in an expedited removal process who show a credible fear of persecution are released pending adjudication of their claims (especially if traveling as a family).

1. Under existing law, expedited removal applies to those who arrive at a port of entry or who entered illegally and are encountered by an immigration officer within 100 miles of the border and within 14 days of entering. Under current rules, in a credible fear interview in an expedited removal matter, asylum, withholding of removal and Convention Against Torture eligibility is assessed together. But the INA does not require this.
2. The interim rule establishes a bifurcated screening process for aliens subject to expedited removal who are ineligible for asylum because of a proclamation but who expresses a fear of return or seeks withholding or CAT protection. If the person is ineligible for asylum because of a proclamation, he or she would still be screened, but in a manner that reflects only viable claims for statutory withholding or CAT protection. The standard for these two remedies is significantly higher than for asylum.

Aliens found to have a reasonable fear under the withholding/CAT standard would be referred to an immigration judge for hearings and could argue both that they are not subject to the proclamation and are eligible for asylum and that they meet the withholding/CAT requirements.

3. This doesn’t affect the current process in 8 CFR 208.30(e)(5) for people who appear to be ineligible for asylum, but who are nonetheless allowed to have an immigration judge review their asylum claim when they are in removal proceedings. The new rule adds to that language to state that a judge can review reasonable fear findings using the reasonable fear standard.
4. Anticipated Effects of the Rule
5. “The interim rule aims to address an urgent situation at the southern border.” There has been a significant increase in the number and percentage of aliens who seek admission or unlawfully enter and then assert an intent to apply for asylum or a fear of persecution. Many people who pass credible fear screenings never apply for asylum or show up at their removal hearings.

97,192 (41%) of aliens in expedited removal proceedings were referred for a credible-fear interview with an asylum officer. 2/3 of those from Honduras, El Salvador and Guatemala (the Northern Triangle countries) requested a credible fear screening. 89% of those were found to have a credible fear. In short, a lot of people are succeeding in showing a credible fear.

Once cases are referred for section 240 proceedings in front of a judge, it ca take months or years due to backlogs in the system. There are 203,569 pending cases based on a credible fear referral – or 26% of the total backlog of 791,821 removal cases. 136,554 of those are from Northern Triangle countries. 34,158 cases were completed by immigration judges in FY 2018. 71% resulted in an order of removal. And of those 10,534 were in absentia orders of removal because the alien did not show up (31%). A high percentage of those also never filed an asylum application as part of their removal proceedings. Only 27% of those who showed up and filed an asylum claim were approved. [DOJ/DHS conveniently fail to note that the vast majority of people in removal proceedings don’t have lawyers and lack the ability to file and document an asylum case. One wonders what the data would show if people were given the right to counsel]. DOJ/DHS also throw in the looming “threat” of the caravan.

2. The rule will help alleviate pressure on the present system. Only 45% of cases were found to show a reasonable fear in 2018 in screening interviews.

The number of officers required to conduct reasonable fear screenings would likely increase under the rule. DHS will devote additional resources to this. DHS will also have to devote additional resources to detaining aliens who previously received a positive credible fear determination. This would be offset by having fewer resources spent on removal proceedings.

3. DOJ/DHS are not in a position to determine how this rule will affect the actual flow of immigrants across the border.
4. The decision calculus for immigrants is presumably going to be affected by a proclamation and implementation of this rule. Increased wait times at ports of entry are likely going to happen, meaning more time waiting in Mexico. More might apply for asylum in Mexico. The rule might help people who are able to file for asylum as the backlogs in court will be reduced.
5. Effects on Departments’ Operations. If aliens were channeled to ports of entry, a lot of resources would be saved. A lot of resources devoted to apprehending immigrants would be saved.

Regulatory Requirements.

 

1. Administrative Procedure Act – DOJ/DHS are asserting an exception to the requirement to issue a Notice of Proposed Rulemaking on the ground that an interim final rule is needed based on there being an emergency situation. DHS has previously relied on this exception in promulgating rules related to expedited removal. Also, the Departments may forgo notice and comment in matters involving a “foreign affairs function of the US.”
2. Regulatory Flexibility Act – Not required if a rule is exempt from notice-and-comment rulemaking.
3. Unfunded Mandates Reform Act of 1995 – not applicable.
4. Congressional Review Act – Not a major rule since it won’t result in an annual effect on the economy of $100 or more [really? What about all those new detention beds?]
5. EO 12855 (Regulatory Planning and Review) – New rule is not a significant regulatory action because of the foreign-affairs exemption.
6. EO 12988 (Civil Justice Reform) – Meets standards set forth in the EO.
7. Paperwork Reduction Act – Not applicable.

Changes to rules –

8 CFR 208.13 Establishing asylum eligibility – an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other order limiting the entry of aliens along the southern border with Mexico issued pursuant to INA 212(f) or 215(a)(1) and the alien enters the US after the date of the proclamation. It doesn’t apply if the proclamation makes exceptions.

8 CFR 208.30(e)(5) – Credible fear determination – Requires judges to apply a reasonable fear standard in cases referred under the new process created by the change in 8 CFR 208.13.

*****

Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States

Preamble –

Being issued in anticipation of the arrival of the “caravan” that was the subject of President Trump’s campaign rhetoric leading up to the 2018 election. The arrival of large numbers of people will overload the immigration and asylum system. Action is needed to protect the national interest and maintain the effectiveness of the asylum system for legitimate asylum seekers.

Over the past few weeks, an average of 2000 inadmissible aliens have entered the US each day at the southern border. 396,579 aliens were apprehended entering the US in the fiscal year just ended. Through the expedited removal process, people can seek a credible fear screening. While most people are found to meet the threshold, only a fraction of those ultimately qualify for asylum or other protection. People who pass the credible fear screening are released as a result of a lack of detention space and are free until their removal cases come up, often years later.  The problem is exacerbated by the fact that families come together and the numbers have increased.

he entry of large numbers of aliens into the US between ports of entry is contrary to the national interest. The lives of both law enforcement and aliens are at risk. Entry via a port allows for orderly processing, which enables the efficient deployment of law enforcement resources across the southern border.

“I am similarly acting to suspend, for a limited period, the entry of certain aliens in order to address the problem of large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation.” Aliens entering through ports may avail themselves of the asylum system.

“In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens – and all others arriving at our ports of entry – as efficiently as possible.”

Aliens who enter unlawfully will be ineligible to be granted asylum under the regulation that became effective earlier today. They will still be eligible to seek withholding of removal or Convention Against Torture protection.

Section 1. Suspension and Limitation on Entry. The entry of any alien into the US across the US southern border is suspended and limited. This suspension will last 90 days or the date on which an agreement permits the US to remove aliens to Mexico in compliance with the terms of INA 208(a)(2)(A), whichever is earlier.

Section 2. Scope and Implementation of Suspension and Limitation on Entry.

• Only applies to those entering after the proclamation.
• Doesn’t apply to people presenting themselves at ports of entry.
• Doesn’t limit the person from seeking withholding of removal or relieve under the Convention Against Torture
• No later than 90 days after the proclamation, the Secretary of State, the AG and the DHS Secretary shall submit a recommendation to whether to extend or renew the suspension.

Section 3. Interdiction – Calls for consultations with Mexico on dealing with the flow of aliens traveling through Mexico,

Section 4. Severability – If the courts invalidate any part of this, the rest will survive.

Section 5. General Provisions

***

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.