So-Called Asylum Ban 2.0 in Effect: What Does that Mean for Your Case?

We now have a situation where applicants fleeing persecution must prove more than ever in order to receive less protection than ever before.

**LEGAL UPDATE**

On July 16, 2019, the Trump administration formally published a rule, so as to begin the process of creating a regulation. The rule makes ineligible for asylum a person who passed through a different country on the way to the United States.

There are some limits to the rule’s reach. A potential applicant must also, in order to be barred from asylum, have:

  • entered the U.S. at the southern border or sought asylum at the southern border on or after July 16, 2019
  • filed an I-589 Application for Asylum, and
  • not yet received a final decision from an immigration judge or the Board of Immigration Appeals (B.I.A.).

There are a few exceptions to the rule, such that the following people can still apply for U.S. asylum:

  • Applicants who did actually apply in the other country or countries they traveled through to reach the southern U.S. border, who were then denied protection there.
  • Applicants who are also human trafficking victims.
  • Applicants who traveled through a country that never signed on to the 1951 Refugee Convention, the 1967 Protocol, or the Convention Against Torture. This last exception will not help the vast majority of people, as Mexico has signed all three treaties.

The rule does not apply to Mexican citizens or Canadian citizens, or to anyone who arrives in the U.S. by plane. The U.S. government is basically asserting a belief that anyone passing through a third country should apply for asylum there. Since Mexican citizens and Canadian citizens as well as visa-holders who arrive by plane do not pass through a third country, their first option for asylum is the United States.

People Who Arrive at U.S. Border Will Receive a Reasonable Fear Interview

Just like in the first asylum ban, which is explained in Trump and A.G. Whitaker Announce New Bar to Asylum for Unlawful Entrants, any applicant who arrives at the U.S. border and who is ineligible for asylum under the rule will receive what’s called a reasonable fear interview. This represents a small window of opportunity to receive protection in the U.S., but it will not actually lead to asylum.

During a reasonable fear interview, an immigration officer attempts to determine whether there is a reasonable possibility that the person can qualify for a remedy similar to asylum but less advantageous, called withholding of removal. It’s basically the applicant’s chance to win the right to not be deported—though withholding of removal will never lead to a green card, either.

Applicants can show a “reasonable fear” by convincing the officer that there is a reasonable possibility that they will, upon presenting the same story to a judge, prove that it is more likely than not that they would be persecuted upon return to their home country.

As a side note, this reasonable fear interview is not new. It is normally given to anyone who expressed a fear of return but who did not qualify for asylum for some other reason. While that previously mostly meant people who had prior orders of deportation or who had committed a crime, it now will also apply to people who are ineligible because of the new rule. This greatly expands the number of people given a reasonable fear interview.

So now we have a situation where applicants must prove more than ever before in order to receive less than ever. Before this, people who came to the southern border and were potentially eligible for asylum received a so-called credible fear interview. They merely had to show to the immigration officer a significant possibility that they could eventually prove an asylum case. While this sounds similar to the reasonable fear standard, the government is very clear that the latter is a harder standard to meet.

Part of the reason is the higher burden of proof for withholding of removal. In a credible fear interview, the asylum seeker has to show only a significant possibility that there is a 10% chance of persecution. In a reasonable fear interview, the withholding-of-removal seeker has to convince the officer both that any fear is reasonable, and that the person has a reasonable possibility of proving that persecution is more likely than not.

Passing the Interview Means Being Placed in Removal Proceedings

If a person passes the reasonable fear interview, the immigration officer will issue a notice to appear (NTA) in immigration court. This provides a date and time for a hearing. Oftentimes the applicant will remain in detention for the entirety of the case. What’s more, under another Trump Administration initiative referred to as the “Remain in Mexico Program,” many applicants will be sent back to Mexico with instructions to return for the court date shown on the NTA.

Any person wishing to continue with their court case must show up to each court date. People subject to the new rule can continue with a withholding of removal case or ask for relief under CAT. How to apply for withholding of removal or CAT relief is explained in more detail Which Should I Apply for: Asylum, Withholding of Removal, and/or Protection Under Convention Against Torture?

Some people might wish to withdraw their application and seek asylum in a different country, such as Mexico. If the U.S. government has already issued a NTA, such people should appear in court and formally withdraw the application in front of a judge. Otherwise, the judge can issue an order of deportation in absentia for that person, which could cause future immigration issues.

Applicants Should Keep Track of the Ongoing Litigation

Just like with the first asylum ban, advocates have sued the U.S. government to stop the rule from being applied. The first lawsuit succeeded in stopping the implementation for a short period of time. However, the Supreme Court overturned that injunction on September 11, 2019, allowing the rule to be applied nationwide. The government has now instituted the rule by putting it into the regulations that cover eligibility for asylum. (See 8 C.F.R. § 208.13(c)(4) and the regulations on credible fear interviews at 8 C.F.R. § 208.30(e)(5).)

The legality of this rule is hotly contested. The government claims that it is acting within its authority and justifies the rule with several obscure provisions of the law. On the other hand, advocates argue that the government has not complied with the correct procedure to make the regulation, and that the regulations made to implement the rule (which are made by the executive) conflict with what Congress intended when it passed the immigration laws.

The case is likely to be appealed back to the Supreme Court in the next year, and many people are speculating about what will happen. If the Court strikes down the regulation, then affected people could be eligible to apply to have their cases reopened. Other applicants whose cases are still pending might be eligible to apply for asylum.

Effective Date: July 16, 2019