Trump and A.G. Whitaker Announce New Bar to Asylum for Unlawful Entrants

Those who enter the U.S. between ports of entry at the southern border have been banned from claiming asylum under a new presidential proclamation.

On November 9, 2018 the Trump administration issued a new bar on asylum, through a presidential proclamation. It applies to people who enter the U.S. unlawfully (outside an official port of entry) at the southern border, after the date of the presidential proclamation. The new rule, which is in force for the 90 days following its issuance, is published in the Federal Register.

People subject to the asylum bar will still be eligible for two similar forms of humanitarian protection—withholding of removal and protection under the Convention Against Torture (CAT).

What Will Happen to People Who Enter the U.S. Outside a Port of Entry After November 9, 2018?

Any non-citizen who enters the U.S. outside a port of entry after the date of the proclamation will (as before) be screened for fear of returning to their home countries.

Previously, first-time unlawful entrants were normally given what's known as a “credible fear” interview, to determine whether there was a “significant possibility” that they could establish eligibility for asylum. To be eligible for asylum one must demonstrate a “well-founded fear” of persecution.

People ineligible for asylum (for example, those with previous removal orders on record) were given what are known as “reasonable fear” interviews, which require the person to show that there's a significant possibility they could meet a higher standard required for withholding of removal or protection under the Convention Against Torture (CAT).

Withholding of removal is a form of protection similar to asylum. However, the applicant must show it is more likely than not he or she will face persecution in his or her home country if returned, based on a protected ground. Protection under the Convention Against Torture (CAT) is granted to people who can demonstrate that it's more likely than not they would face torture in their home countries if returned.

Under the new proclamation, non-citizens who enter the U.S. between ports of entry will be deemed ineligible for asylum and thus only screened for withholding of removal and CAT protection in a reasonable-fear type interview.

Under this heightened standard, fewer people will pass the initial screening interview. Those who enter unlawfully and are apprehended at the border are subject to expedited removal and will therefore ordinarily be removed to their home countries if they do not pass the reasonable fear interview, with no further proceedings available to them.

What Will Happen After the Reasonable Fear Interview?

Entrants who pass the reasonable fear interview will be put into removal proceedings. There, they can apply for withholding of removal and/or CAT protection in front of an immigration judge.

They will also be eligible to be released on bond, if they can demonstrate they are not a flight risk and do not pose a national security risk. They can also challenge the asylum bar in front of the immigration judge if they believe they were incorrectly subject to the proclamation.

People who do not pass the initial reasonable fear screening can ask to have the determination, including the determination they are subject to the asylum ban, reviewed by an immigration judge. If that determination is upheld by the immigration judge, however, they will be returned to their home country without a full hearing on the merits of their claim for humanitarian protection.

What Will Happen After the 90 Days That the Bar Is In Force Ends?

The bar is in effect for 90 days, starting on November 9. However, it might be renewed thereafter.

Expect court challenges, however. President Trump is unilaterally changing U.S. immigration law with this order. To do do, he invoked his authority under national security provisions of the Immigration and Nationality Act (I.N.A.), as he did in his travel ban. The legal community is likely to ask federal judges to review whether that use of executive action was an overreach.