In the past few days, I have heard considerable talk in the media and amongst fellow attorneys about “Trump’s New Asylum Rule.” Many newspaper articles and lawyers on social media are making canned statements that this policy is contradictory to domestic and international law without stating what the law actually is. While I certainly agree with this conclusion, I went in search of the actual language of the law, domestic and international, so that I may respond to questions about this rule accurately.
First, let’s look at the language of the new rule. On July 16, 2019 the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) published a joint interim final rule in the Federal Register entitled, “Asylum Eligibility and Procedural Modifications.” 84 FR 33829. The new rule would limit foreign nationals’ ability to claim asylum if they enter or attempt to enter the United States across its southern border. In this new rule, any foreign national that travels through another country before arriving to the southern border must first apply for asylum in that country. If the foreign national fails to seek asylum in that third country, they are barred from seeking asylum in the US.
The new rule offers some exceptions. First, the rule is to be applied prospectively to those foreign nationals who enter or arrive in the United States on or after the rule’s effective date, which is July 16, 2019. Thus, this rule will potentially be applied to those waiting in Mexico due to the metering being done by the government at the border but not those already in the U.S. by that date. Second, the foreign national is required to seek asylum in a third country only if that third country is a party to the 1951 Convention, 1967 Protocol, or the Convention Against Torture. 8 C.F.R. § 208.13(c)(4)(iii). However, this exception is superfluous as nearly every country in the Western Hemisphere has been a party to one of those agreements. Last, the rule does not affect withholding or deferral of removal proceedings, but those are different than asylum as we will discuss shortly.
Although the rule has no bearing on withholding or deferral of removal proceedings, these proceedings carry a higher standard of proof and those foreign nationals, who are granted withholding of removal, have significantly limited legal rights when compared to their asylee counterparts. First, as any removal practitioner will tell you, withholding of removal requires the foreign national to show that it is “more likely than not” that his life or freedom will be threatened if returned to his home country. This standard is considerably higher than the standard required for asylum. Further, persons granted withholding effectively receive an unexecuted order of removal. Thus, these persons are not free to travel outside the US, and there is no provision for family reunification.
Asylum works differently than withholding or deferral of removal proceedings. Under the Immigration and Nationality Act (“INA”), a foreign national physically present in the United States, regardless of status or place of entry, may apply for asylum. 8 U.S.C. § 1158(a)(1). However, like nearly every law on the books, there are exceptions to the general asylum statute. In particular, if there is a safe third country agreement with another country and that country has a full and fair procedure to access a claim of asylum, the Attorney General may determine that the foreign national may be removed according to the agreement.
Currently, the United States has only one safe third country agreement: with Canada. Recently, the current administration’s attempts to sign such agreements with Mexico and Guatemala failed, though the effort in Guatemala may be again in play. Arguably, neither Guatemala nor Mexico’s system can be described as full and fair.
The INA provides an enumerated list of four additional exceptions to the general asylum law, but none of those exceptions exclude foreign nationals who pass through a third country in transit to the southern border of the US from seeking asylum in the US. 8 U.S.C. § 1158(a)(2)(A)-(E). Under the canon of statutory interpretation, expressio unius, the expression of one thing implies the exclusion of another. In this case, Congress has provided an enumerated list of exceptions to the general asylum statute. I cannot help but think that the exclusion of other possible exceptions was intentional. In other words, the expression of the five enumerated exceptions implies the exclusion of others.
Because the new rule is so contrary to the plain meaning of the statutes relating to asylum, the Attorney General’s interpretation and subsequent rule should not be given deference by the courts. I find it impossible to read the new rule in a way that is consistent with the current domestic law. Based on this inconsistency, I do not see how this rule would survive any legal challenge.
And what about international law? The international law of interest comes from Article 33 of the 1951 Convention, titled “Prohibition of Expulsion or Return.” 1951 Convention, Article 3, Paragraph 1. With Article 33, the signatories to the Convention would not expel or return a refugee to any country where he may be persecuted on the basis of his race, religion, nationality, political opinion, or membership in a particular social group. This is called non-refoulement. Id. This concept includes not only the foreign national’s country of origin, but also any other countries where his life or freedom would be threatened on account of the aforementioned reasons.
There are a number of foreign nationals that have valid arguments that their lives and freedom would be threatened if they were forced to seek asylum in Guatemala or Mexico, due to the individual circumstances of their claims to asylum. As a result, the administration’s new rule cannot be a rule of general applicability; it requires individualized analysis of each claim to asylum and knowledge of the country conditions in a third country. As a result, I do not see the new rule as consistent with the US’s international obligations under the 1951 Convention.
Thus, because this new rule is inconsistent with domestic and international law, it cannot stand. As attorneys, the public looks to us to be the experts in the law. I know we are all busier than ever, but whenever possible, we can and should go beyond a simple “canned” sentence or two and explain how something would erode our legal system as best we can. That’s yet another job of lawyers these days.