Originally published by The Hill
The legal maze facing asylum seekers at the Southern border has become even more convoluted. A recent federal court order that suspended the Justice Department regulation making illegal crossers ineligible for asylum opens up additional Catch-22 conundrums.
The Justice Department issued an interim final rule (rule) which makes aliens who cross the Mexican border illegally ineligible for asylum. It is supposed to implement President Donald Trump‘s proclamation that suspends the entry of the illegal crossers, which he issued pursuant to his authority under section 212(f) of the Immigration and Nationality Act (INA).
The Supreme Court upheld Trump’s use of section 212(f) as authority for his Travel Ban Order, holding that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”
Immigration advocacy organizations filed a motion asking a U.S. District Court in Northern California to stop the rule from going into effect.
The parties agreed that the proclamation did not render any alien ineligible for asylum. District Judge Jon S. Tigar found, therefore, that the case did not present the question of whether section 212(f) authorizes the president to directly limit asylum eligibility, so he did not include the proclamation in his decision.
This was a mistake. Although the proclamation doesn’t say that it is making the illegal crossers ineligible for asylum, it prevents them from getting relief of any kind that would allow them to enter the United States.
Judge Tigar granted a temporary restraining order which prohibits any action to continue the implementation of the rule and requires a return to the pre-rule practices for processing asylum applications.
My former congressional colleague Andrew Arthur has arguedpersuasively that the restraining order should not have been issued. He may be right, but Judge Tigar’s decision isn’t likely to be reversed until the case gets to the Supreme Court.
Arthur also points out that according to information in Wikipedia, Judge Tigard does not have much experience with immigration law.
This would explain why he issued an order enjoining a regulation that protected illegal crossers from serious, unintended consequences.
Illegal crossers who are apprehended at or near the border are placed in expedited removal proceedings.
Judge Tigar’s restoration of pre-rule practices for processing asylum applications means that the illegal crossers will not be prevented from establishing a credible fear of persecution in the expedited removal proceedings, which will entitle them to an asylum hearing before an immigration judge.
But the immigration judge will have to deny their applications because asylum would permit then to enter the United States – and the proclamation bars their entry.
Moreover, the denial will make them statutorily ineligible for asylum if they file another asylum application later.
The first paragraph in the asylum provisions states that any alien who is physically present in the United States may apply for asylum, but the second paragraph provides three exceptions.
One of the exceptions states that asylum is not available to an alien who has filed a previous application that was denied, unless he can show a change in circumstances which materially affects his eligibility for asylum.
The rule that Judge Tigar suspended would have avoided this problem by preventing the asylum seekers from getting to a hearing before an immigration judge at which their applications would be denied.
It is possible that when the proclamation is terminated, a court will find that the termination materially affects asylum eligibility and therefore that the bar to future asylum applications no longer applies.
But the third paragraph provides that no court shall have jurisdiction to review any determination on the exceptions. The courts, therefore, will not be able to reinstate asylum eligibility on this or on any other basis.
It will be up to Trump to decide whether aliens whose applications are denied on account of the proclamation will be able to file another asylum application when the proclamation is lifted.
Illegal crossers, however, may be able to avoid persecution by applying for withholding of removal.
Relief under the withholding provision just prohibits sending an alien to a country where it is more likely than not that he would be persecuted. Consequently, withholding would not violate the entry prohibition in the proclamation.
The relief would apply only to the alien who is at risk of being persecuted. It would not include his spouse or children.
The proclamation, nevertheless, would be a serious problem for aliens who are granted withholding. It would prevent them from being released from detention while arrangements are being made to find a suitable country that is willing to take them, and that may not even be possible, depending on the case.
Asylum seekers who go to ports of entry instead of making an illegal crossing are experiencing problems. Nevertheless, it might be wise to try at least some of the ports of entry before resorting to an illegal crossing.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.