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Trump Administration Takes Domestic and International Measures to Restrict Asylum

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The Trump administration has continued its efforts to restrict immigration through a series of measures designed to limit the availability of asylum in the United States and to promote increased immigration enforcement in Mexico. In July of 2019, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) promulgated an interim final rule disqualifying asylum applicants who transited through third countries without seeking protection in those countries. This rule immediately became the subject of ongoing litigation, and, in September of 2019, the Supreme Court stayed an injunction that had been issued against its enforcement, with two justices dissenting. At the international level, over the summer and early fall of 2019, threats of economic sanctions led Guatemala, El Salvador, Honduras, and Mexico to make agreements with the United States aimed at curbing unauthorized migration into the United States. Guatemala signed an agreement with the United States under which asylum applicants in the United States who had transited through Guatemala on the way could be returned to Guatemala to pursue their asylum claims. El Salvador and Honduras also reached agreements with the United States relating to migration. Mexico committed to increasing its efforts to stem the flow of unauthorized immigration through its borders and assented to the U.S. expansion of its Migrant Protection Protocols. The Trump administration has continued pursuing other tactics to limit immigration and the availability of asylum, including through the issuance of legal decisions by Attorney General William Barr and continued litigation surrounding the construction of a border wall.

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References

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1 For additional background, see Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 377 (2019) [hereinafter Asylum Story]; Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 741 (2018).

2 See Asylum Story, supra note 1. On April 29, 2019, Trump cited asylum fraud as “the biggest loophole drawing illegal aliens to our borders” and issued a presidential proclamation calling on officials to “strengthen asylum procedures” by promulgating regulations to restructure court proceedings for asylum seekers, institute fees to apply for asylum or request work authorization, and “reprioritize the assignment of immigration officers.” White House Fact Sheet, President Donald J. Trump Is Working to Stop the Abuse of Our Asylum System and Address the Root Causes of the Border Crisis (Apr. 29, 2019), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-working-stop-abuse-asylum-system-address-root-causes-border-crisis [https://perma.cc/T72G-GCRS]; Donald J. Trump, Presidential Memorandum on Additional Measures To Enhance Border Security and Restore Integrity to Our Immigration System, 2019 Daily Comp. Pres. Doc. No. 251 (Apr. 29).

3 Proclamation No. 9822, 83 Fed. Reg. 57,661 (Nov. 9, 2018).

4 Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018).

5 E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. Dec. 19, 2018). For additional information, including a discussion of the Supreme Court's decision not to stay the injunction, see Asylum Story, supra note 1, at 382–83. Trump extended the November 9 proclamation, which was set to expire ninety days after its issuance, through two additional proclamations issued on February 7, 2019, and May 8, 2019. In each of these additional proclamations, Trump dismissed the preliminary injunction as “hamper[ing]” “the ability of the United States to address these problems” of migration through the southern border and indicated that “[t]he United States is appealing that injunction.” Proclamation No. 9842, 84 Fed. Reg. 3,665 (Feb. 7, 2019) (extending the November 9 proclamation for another ninety days); Proclamation No. 9880, 84 Fed. Reg. 21,229 (May 8, 2019) (extending the November 9 proclamation until ninety days after either (1) “the United States obtains relief from all injunctions that prevent full implementation of the interim final rule promulgated” on November 9, or (2) the United States enters into a safe third country agreement with Mexico).

6 Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019).

7 Id. at 33,830.

8 Id. Under U.S. immigration laws, asylum, withholding of removal, and relief under CAT carry with them different requirements and burdens of proof and provide the successful applicant with different benefits. See, e.g., Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (“[A]sylum and withholding of removal have different quantitative standards of proof [that the applicant, if returned will suffer persecution based on a protected ground]—ten percent for asylum, and ‘more likely than not’ for withholding”); 8 C.F.R. § 1208.16(c)(2) (requiring a showing under [CAT] that it is more likely than not that the applicant will be tortured if returned to his or her home country). Asylum is a discretionary benefit, while it is mandatory for a judge to grant withholding of removal or CAT if an applicant meets the requirements. See, e.g., Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008) (“Although a grant of asylum is in the discretion of the Attorney General, [withholding of removal] is granted to qualified aliens as a matter of right … [and] [r]elief under the CAT is mandatory if the convention's criteria are satisfied”) (internal citations omitted). Relief under withholding of removal and CAT do not carry the same benefits as asylum—a successful applicant does not have a path to becoming a lawful permanent resident under withholding of removal or CAT as he or she would under asylum. U.S. Dep't of Justice Fact Sheet, Asylum and Withholding of Removal Relief Convention Against Torture Protections, at 1, 6–7 (Jan. 15, 2009), available at https://www.justice.gov/sites/default/files/eoir/legacy/2009/01/23/AsylumWithholdingCATProtections.pdf [https://perma.cc/EM68-4S4S].

9 UN Convention Relating to the Status of Refugees, Art. 1, July 28, 1951, 189 UNTS 150 [hereinafter Refugee Convention] (also identifying several other situations in which the person will no longer be considered a refugee). The United States is not a party to the Refugee Convention but has accepted its obligations by acceding to the 1967 Protocol Relating to the Status of Refugees, January 31, 1967, 606 UNTS 267.

10 UN High Commissioner for Refugees (UNHCR) Press Release, UNHCR Deeply Concerned about New U.S. Asylum Restrictions (July 15, 2019), at https://www.unhcr.org/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-restrictions.html.

11 Pl.’s Memo. in Supp. of Mot. for T.R.O. at 3, E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 930 (N.D. Cal. 2019) (No. 19-cv-04073) (“Critically, as part of our nation's commitment to the protection of people fleeing persecution and consistent with our international obligations, it is longstanding federal law that merely transiting through a third country is not a basis to categorically deny asylum to refugees who arrive in the United States.”).

12 See 8 U.S.C. § 1158(a)(1).

13 8 U.S.C. § 1158(b)(2)(A)(vi).

14 8 U.S.C. § 1158(a)(2)(A) [hereinafter Safe Third Country Provision].

15 See, e.g., 8 C.F.R. § 208.15. For an in-depth explanation of the firm resettlement bar, see USCIS, Firm Resettlement Training Module (Jan. 17, 2019), available at https://www.uscis.gov/sites/default/files/files/nativedocuments/Firm_Resettlement_LP_RAIO.pdf [https://perma.cc/2XNJ-6P89].

16 Safe Third Country Provision, supra note 14; see also 8 U.S.C. § 1158(a)(2)(E) (stating that this provision does not apply to unaccompanied minors). Additional qualifications to the Safe Third Country Provision are discussed in note 32 infra and accompanying text.

17 See Appelbaum, Adina, CAIR Coalition Joins in Challenge of New Rule Barring Asylum Eligibility for Many Migrants, Capital Area Immigrants’ Rts. Coal. (July 16, 2019), at https://www.caircoalition.org/news-clip/cair-coalition-joins-challenge-new-rule-barring-asylum-eligibility-many-migrants.

18 Capital Area Immigrants’ Rights Coal. v. Trump, No. 1:19-CV-02117-TJK, 2019 WL 3436501 (D.D.C. July 24, 2019).

19 E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019).

20 Id. at 922–23; see also id. at 924 (expressing additional concerns about the application of the rule to unaccompanied minors).

21 White House Press Release, Statement from the Press Secretary (July 24, 2019), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-68 [https://perma.cc/8Y4L-4AVS] (“Today's ruling in the United States District Court for the District of Columbia is a victory for Americans concerned about the crisis at our southern border. The court properly rejected the attempt of a few special interest groups to block a rule that discourages abuse of our asylum system.”).

22 White House Press Release, Statement from the Press Secretary (July 25, 2019), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-69 [https://perma.cc/MM6B-AD52] (“Yesterday evening, a single district judge in California, based on a complaint filed by a few activist groups with no legal standing, issued a nationwide injunction against a lawful and necessary rule that discourages abuse of our asylum system—and did so despite a ruling from another Federal judge earlier in the day rejecting the same request by other plaintiffs and suggesting that the Government was likely to prevail against challenges to the rule.”).

23 Id.

24 E. Bay Sanctuary Covenant v. Barr, No. 19-16487, 2019 WL 3850928 (9th Cir. Aug. 16, 2019).

25 Application for a Stay Pending Appeal to the United States Court of Appeals for the Ninth Circuit and Pending Further Proceedings in This Court, Barr v. E. Bay Sanctuary Covenant, S. Ct. No. 19A230 (Aug. 26, 2019), at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19a230.html.

26 Decision on Application for Stay at 1, Barr v. E. Bay Sanctuary Covenant, S. Ct. No. 19A230 (Sept. 11, 2019), available at https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf. The order itself did not contain any substantive legal reasoning. See id.

27 Id. at 4 (Sotomayor, J., dissenting). Justice Sotomayor's dissent also detailed several further proceedings in the lower courts that occurred between the August 16 decision of the Ninth Circuit and the Supreme Court's order. See id. at 4-5.

28 Marcia Brown, Trump's Latest Asylum Rule, Explained, Am. Prospect (July 22, 2019), at https://prospect.org/article/trumps-latest-asylum-rule-explained.

29 Ministerio de Relaciones Exteriores, Noticias de Interés (July 23, 2019), at https://www.minex.gob.gt/noticias/Noticia.aspx?id=28309. See also Marcia Brown, As a Guatemala Asylum Agreement Fades, a New Trump Rule Threatens Migrants, Am. Prospect (July 15, 2019), at https://prospect.org/article/guatemala-asylum-agreement-fades-new-trump-rule-threatens-migrants.

30 The White House (@WhiteHouse), Twitter (July 26, 2019, 2:10 PM), at https://twitter.com/whitehouse/status/1154861528539160576 [https://perma.cc/D62L-VRDV]. Guatemala may not view the agreement as amounting to a safe third country agreement. See Lauren Carasik, Trump's Safe Third Country Agreement with Guatemala Is a Lie, For. Pol'y (July 30, 2019), at https://foreignpolicy.com/2019/07/30/trumps-safe-third-country-agreement-with-guatemala-is-a-lie (“For his part, [the President of Guatemala] has declined to characterize the accord as a safe third country agreement, calling it a ‘Cooperation Agreement’ instead, apparently to circumvent the Constitutional Court's injunction.”). The countries did not officially release the contents of this agreement at first, but the text appears to have become available online, including at https://www.justsecurity.org/wp-content/uploads/2019/07/Guatemala-Cooperative-Agreement-with-Signature-Blocks-ENG.pdf.

31 Donald J. Trump, Remarks in an Exchange with Reporters Prior to Departure for Wheeling, West Virginia, 2019 Daily Comp. Pres. Doc. No. 506 (July 24) (“So, Guatemala gave us their word. We were going to sign a safe third agreement and then, all of a sudden, they backed up. They said it was their supreme court. I don't believe that. But they use their supreme court as the reason they didn't want to do it. So we'll either do tariffs or we'll do something. We're looking at something very severe with respect to Guatemala … . So, Guatemala we're going to take care of and it won't even be tough. We're going to do—we're looking at a couple of different things.”).

32 Remarks on the Signing of the Guatemala-United States Safe Third Country Agreement and an Exchange with Reporters, 2019 Daily Comp. Pres. Doc. No. 509 (July 26).

33 Michael D. Shear, Zolan Kanno-Youngs & Elizabeth Malkin, After Tariff Threat, Trump Says Guatemala Has Agreed to New Asylum Rules, N.Y. Times (July 26, 2019), at https://www.nytimes.com/2019/07/26/world/americas/trump-guatemala-asylum.html.

34 Safe Third Country Provision, supra note 14.

35 UNHCR, Legal Considerations Regarding Access to Protection and a Connection Between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries (Apr. 2018), available at https://www.refworld.org/docid/5acb33ad4.html. For further discussion of the principle of non-refoulement, see Asylum Story, supra note 1.

36 U.S. Dep't of State, 2018 Country Reports on Human Rights Practices: Guatemala (Mar. 13, 2019), at https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/guatemala (stating that “Civilian authorities at times did not maintain effective control over the security forces”; that “[h]uman rights issues 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”; and that “[c]orruption and inadequate investigations made prosecution difficult, and impunity continued to be widespread”).

37 Sonia Perez D., President-Elect Says Guatemala Can't Do Migrant Deal with US, Assoc. Press (Aug. 13, 2019), at https://www.apnews.com/ecd51531cbf2428c823ab06233c222a9 (also stating that the agreement would need the approval of the Guatemalan legislature).

38 Kirk Semple, The U.S. and Guatemala Reached an Asylum Deal: Here's What It Means, N.Y. Times (July 28, 2019), at https://www.nytimes.com/2019/07/28/world/americas/guatemala-safe-third-asylum.html.

39 U.S. Dep't of Homeland Security Press Release, Joint Statement Between the U.S. Government and the Government of El Salvador (Sept. 20, 2019), at https://www.dhs.gov/news/2019/09/20/joint-statement-between-us-government-and-government-el-salvador.

40 Nick Miroff, U.S. Announces Asylum Deal with Honduras, Could Send Migrants to One of World's Most Violent Nations, Wash. Post (Sept. 25, 2019), at https://www.washingtonpost.com/immigration/us-announces-asylum-deal-with-honduras-could-send-migrants-to-one-of-worlds-most-violent-nations/2019/09/25/cca94a86-dfb6-11e9-8fd3-d943b4ed57e0_story.html.

41 Donald J. Trump, Statement on Emergency Measures to Address Illegal Migration at the Mexico-United States Border, 2019 Daily Comp. Pres. Doc. No. 354 (May 30).

42 Id.

43 Id. For a discussion of the extent to which Trump might have the legal authority to impose these tariffs under the International Emergency Economic Powers Act (IEEPA), see Scott R. Anderson & Kathleen Claussen, The Legal Authority Behind Trump's New Tariffs on Mexico, Lawfare Blog (June 3, 2019), at https://www.lawfareblog.com/legal-authority-behind-trumps-new-tariffs-mexico.

45 U.S. Dep't of State Press Statement, Conclusion of Negotiations with Mexico (June 7, 2019), at https://www.state.gov/conclusion-of-negotiations-with-mexico [https://perma.cc/3S55-LLTE].

46 U.S. Dep't of State Press Release, U.S.-Mexico Joint Declaration (June 7, 2019), at https://www.state.gov/u-s-mexico-joint-declaration/ [https://perma.cc/Q8CA-2JVJ] [hereinafter Joint Declaration].

47 Id.

48 James Fredrick, How Mexico Beefs Up Immigration Enforcement to Meet Trump's Terms, NPR (July 13, 2019), at https://www.npr.org/2019/07/13/740009105/how-mexico-beefs-up-immigration-enforcement-to-meet-trumps-terms.

49 Joint Declaration, supra note 46.

50 For additional background, see Asylum Story, supra note 1. The Trump administration began implementing the Migrant Protection Protocols in January of 2019. Although a federal district court judge initially imposed a preliminary injunction against enforcement of the Migrant Protection Protocols, the Ninth Circuit granted the government's motion to stay the injunction and consequently, the program was allowed to take effect as litigation continues. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019); Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019).

51 Joint Declaration, supra note 46.

52 Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019); see also Michael D. Shear & Katie Benner, In New Effort to Deter Migrants, Barr Withholds Bail to Asylum Seekers, N.Y. Times (Apr. 16, 2019), at https://www.nytimes.com/2019/04/16/us/politics/barr-asylum-bail.html. A recent document issued by UNHCR states that “[i]mportantly, as seeking asylum is not an unlawful act, detaining asylum-seekers for the sole reason of having entered without prior authorisation runs counter to international law. Under international law, individuals have the right to seek asylum, and if they do so, to be treated humanely and with dignity.” UNHCR, Beyond Detention 2014–2019: A Global Strategy to Support Governments to End the Detention of Asylum-Seekers and Refugees, at 5, at https://www.unhcr.org/53aa929f6.

53 Padilla v. U.S. Immigration & Customs Enf't, 387 F. Supp. 3d 1219, 1223 (W.D. Wash. 2019). The White House press secretary condemned this decision as “at war with the rule of law.” White House Press Release, Statement from the Press Secretary (July 3, 2019), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-61 [https://perma.cc/TJ68-7HPC].

54 Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019).

55 Refugee Convention, supra note 9, Art. 1(A)(2).

56 See, e.g., Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006), overruled on other grounds by Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (“Social groups based on innate characteristics such as sex or family relationship are generally easily recognizable and understood by others to constitute social groups.”).

57 27 I&N, supra note 54, at 582. In addition to these developments, the Trump administration is also seeking to revisit a long-standing court settlement that limits the extent to which minor children entering the United States can be held in detention. See Michael D. Shear & Zolan Kanno-Youngs, Migrant Families Would Face Indefinite Detention Under New Trump Rule, N.Y. Times (Aug. 21, 2019), at https://www.nytimes.com/2019/08/21/us/politics/flores-migrant-family-detention.html (describing a newly issued regulation on this issue).

58 Proclamation No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019); see also Asylum Story, supra note 1.

59 U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019).

60 Id.

61 Sierra Club v. Trump, No. 19-CV-00892-HSG, 2019 WL 2715422 (N.D. Cal. June 28, 2019).

62 Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019).

63 Trump v. Sierra Club, No. 19A60, 2019 WL 3369425 (U.S. July 26, 2019).

Trump Administration Takes Domestic and International Measures to Restrict Asylum

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