Legal experts say new federal rule to block most asylum claims is on shaky ground

It’s not a matter of if, but when, a federal court will strike down the Trump administration’s latest attempt to rewrite laws governing who can receive asylum in the United States, immigration and legal experts said Monday.

On Monday, the U.S. Department of Homeland Security and Department of Justice announced an interim rule that effectively denies asylum to migrants who don't first apply for protections in a third country before requesting asylum at the southern border. The rule is scheduled to go into effect Tuesday; the American Civil Liberties Union quickly announced it would challenge the rule in court.

During a conference call with reporters Monday, legal and immigration experts said the new rule is on shaky ground for a number of reasons, including recent court decisions. The White House last November tried to prevent undocumented immigrants who cross the border illegally between ports of entry from seeking asylum, but a federal court blocked that attempt, and the U.S. Court of Appeals for the 9th Circuit upheld that ruling; in December, the U.S. Supreme Court denied the administration’s request to immediately enforce the policy.

“We see the rule being announced today as being similarly illegal but broader in scope, and thus more problematic,” said Keren Zwick, associate director of litigation at the National Immigrant Justice Center.

According to the DHS and DOJ, the new rule more efficiently identifies applicants who are “misusing the asylum system.”

“Aliens who transited through another country where protection was available, and yet did not seek protection, may fall within that category,” the rule states.

Although the administration has been in discussions with Mexico and Guatemala to designate them as safe third countries, those discussions have stalled, and the only current agreement is with Canada. Tom Jawetz, the vice president of immigration policy at the Center for American Progress, said that's only part of the reason the rule "violates the statutory scheme laid out by Congress and is illegal, plain and simple."

"Congress has explicitly provided only two circumstances in which time spent in a third country could justify barring a person from receiving asylum: if the United States has entered into a 'safe third country' agreement with that country or if the person firmly resettled in that country," he said in a written statement. "The United States does not have a safe third country agreement with Mexico and its neighboring countries — and none of those countries credibly could be called 'safe.' Second, merely passing through another country cannot and does not constitute firm resettlement in that country."

Eleanor Acer, the director of refugee protection at Human Rights First, said the rule is an attempt to circumvent U.S. asylum laws.

“Congress passed laws to protect refugees with well-founded fears of persecution and danger,” she said, adding that those laws also ensure that people seeking asylum can apply regardless of their nationality, travel route or point of entry in the United States.

“This [rule] is entirely inconsistent with those provisions Congress enacted into law,” she said.

Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said that by the U.S. State Department’s own admission, countries like Guatemala aren’t safe.

In a 2018 report on human rights in Guatemala, the State Department included reports of "harsh and life-threatening prison conditions; widespread corruption; trafficking in persons; crimes involving violence or threats thereof targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, persons with disabilities, and members of other minority groups; and use of forced or compulsory or child labor.”

Krishnaswami also noted the stories that have come out of Mexico after that country agreed to take part in the United States’ Migration Protection Protocols. The policy mandates that most asylum seekers remain in Mexico while their cases play out in American immigration courts. Immigration attorneys and human rights groups have reported several allegations of violence against asylum seekers in Mexico, including rape, kidnapping and extortion.

“It’s clear that these are countries that are forcing asylum seekers to the U.S. southern border because the conditions are deeply unsafe,” she said.

Zwick added that the new rule could also face legal challenges based on the federal government's posting rules. The Administrative Procedures Act requires federal agencies to publish rule changes for a certain period of time before they are enacted.

But according to the text of the rule issued Monday, federal agencies can circumvent that requirement.

“[The APA] provides an exception ‘when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,’” the rule states. “Agencies have previously relied on that exception in promulgating immigration-related interim rules.”