Update, as of December 7, 2018
On November 27, 2018, the United States appealed the Court's November 19, 2018, temporary restraining order to the U.S. Court of Appeals for the Ninth Circuit, and asked the district court to stay its order and allow the interim final rule to go into effect pending that appeal. On November 30, 2018, the district court denied the government's motion to stay. The district court found that the government had not met its burden to show that the interim final rule is lawful, or rebutted the harms that would be suffered by asylum seekers with legitimate claims and the organizations that assist them if the interim final rule would go into effect. On December 3, 2018, Plaintiffs in the case will file a motion for a preliminary injunction, which would, in effect, extend the temporary restraining order by asking the district court to enjoin the government from continuing to implement the interim final rule pending a resolution of the case. The Court will hold a hearing on that motion on December 19, 2018.
On December 7, 2018, the Ninth Circuit denied the government's motion for a stay of the district court's temporary restraining order pending appeal. The Ninth Circuit found that the government had not satisfied the standard for a stay because, among other things, it had not established that it is likely to prevail on the merits of its appeal of the temporary restraining order.. The opinion can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/07/18-17274.pdf
Federal Judge Issues a Restraining Order Against the Asylum Ban
On November 19, 2018, a federal judge in San Francisco entered an order preventing the government from continuing to implement a November 9, 2018, interim final rule that barred certain individuals from qualifying for asylum. Order Granting Temporary Restraining Order; Order to Show Cause re Preliminary Injunction, ECF No. 43, East Bay Sanctuary Covenant, et al. v. Trump et al., 18-cv-6810-JST (N.D. Cal. Nov. 19, 2018).
What Did the Interim Rule and Presidential Proclamation Attempt to Mandate?
The interim final rule was published on the same day as a Presidential Proclamation that, together with the interim final rule, barred from asylum relief those individuals who entered the United States through the southern border with Mexico at a place other than a lawful point of entry. See Aliens Subject to Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018) (codified at 8 C.F.R. § 208.13(c)(3)); Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States (Nov. 9, 2018). Instead, such individuals were eligible to seek withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), or protection from removal under the Convention Against Torture (“CAT”), if they established a reasonable fear of persecution or torture before a U.S. asylum official. See 8 C.F.R. § 208.30(e)(5). The interim rule and proclamation applied to individuals who entered the United States after November 9, 2018, and the proclamation is set to expire on February 7, 2019 (or the date of any qualifying safe third-country agreement with Mexico, whichever is earlier).
What U.S. Laws Relate to Asylum Seekers Who Enter Without Authorization?
Prior to the interim rule, individuals who entered the United States without admission, had been present in the United States for 14 days or less, and were apprehended within 100 miles of the border, were subject to expedited removal procedures. Under these procedures the individual was entitled to further consideration of his or her asylum claim if he or she established to an asylum officer a credible fear of persecution. See generally 8 U.S.C. § 1225(b); Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004).
What did the Interim Rule and Presidential Proclamation Attempt to Change?
The new interim rule and proclamation did two main things. First, they made certain individuals ineligible for asylum, while maintaining their eligibility for withholding of removal and protection of removal under CAT.[i] Second, for those immigrants who were ineligible for asylum under the interim final rule, in order to receive further consideration of their claims for withholding of removal and/or protection of removal under CAT, the immigrant had to demonstrate a reasonable fear of persecution, which is a higher standard than establishing a credible fear of persecution. Compare 8 C.F.R. § 208.31(c) ( a “reasonable fear of persecution or torture” means establishing “a reasonable possibility that [the individual] would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion [same as asylum standard], or a reasonable possibility that [the individual] would be tortured in the country of removal”) with 8 U.S.C. § 1225(b)(1)(B)(v) (defining “credible fear of persecution” as “a significant possibility . . . that the [individual] could establish eligibility for asylum”).
An immigrant who was subject to the asylum bar and who established a reasonable fear of persecution would have been placed in removal proceedings under section 240 of the INA (as was the case for those immigrants who established a credible fear of persecution prior to the effective date of the asylum bar). In such proceedings, the immigrant could have argued that he or she was not in fact subject to the eligibility bar established in the interim final rule. 8 C.F.R. § 1208.30(g)(1)(i). In addition, an immigrant subject to the asylum bar who did not establish a reasonable fear of persecution could have sought de novo review before an immigration judge of both the determination that the immigrant was subject to the asylum bar as well as the determination that the immigrant did not establish a reasonable fear of persecution. 8 C.F.R. §§ 208.30(e)(5), 1208.30(g)(1)(i).
Under the interim final rule and proclamation, unaccompanied minors remained exempt from expedited removal procedures. See 8 U.S.C. § 1232(a)(5)(D); Presidential Proclamation § 2(c). However, the interim final rule and proclamation barred unaccompanied minors who entered the United States through the southern border with Mexico at a place other than a lawful point of entry from being eligible for asylum. L. Francis Cissna, PM-602-0166: Procedural Guidance for Implementing Regulatory Changes Created by Interim Final Rule, Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims, at 6 (Nov. 9, 2018).
What Happens Next?
In granting the request for a temporary restraining order, the Court required the government to return to the processes for granting asylum that existed before the interim rule. The Court granted the request because it found that the plaintiffs in the lawsuit were likely to succeed on their claim that the interim rule is invalid because it is inconsistent with the language of 8 U.S.C. § 1158(a)(1). That section says that any individual “who arrives in the United States (whether or not at a designated port of arrival . . .), irrespective of such [individual’s] status, may apply for asylum.” The Court’s order remains in effect until December 19, 2018 (when the court will hold another hearing).
The text of the interim final rule is available here: https://www.gpo.gov/fdsys/granule/FR-2018-11-09/2018-24594/content-detail.html
The Presidential Proclamation can be found at: https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states
The USCIS Procedural Guidance is available at: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-11-09-PM-602-0166-Procedural_Guidance_for_Implementing_Regulatory_Changes_Created_by_Interim_Final_Rule.pdf
The Court’s November 19, 2018 opinion granting a temporary restraining order can be found here: https://assets.documentcloud.org/documents/5198146/Order-granting-temporary-restraining-order.pdf
[i] 1 The standard for demonstrating eligibility for withholding of removal under INA §241(b)(3) and CAT protection is more onerous than the standard that applies to asylum. To be eligible for withholding an applicant must show that it is more likely than not that she will be subject to persecution because of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). To qualify for protection under CAT, the applicant must show that it is more likely than not that she will be tortured if removed to a particular country. 8 C.F.R. § 1208.16(c)(2). To be eligible for asylum an individual must show past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Additionally, withholding of removal and CAT protection confer fewer benefits than asylum status. A person with asylum status may not be removed to her country of origin, can petition for his or her spouse and children, may apply for a refugee travel document, is eligible for work authorization, and can apply to become a lawful permanent resident after one year. See id. §§ 1158(b)(3)(A), (c)(1), 1159(b). A person who is granted withholding of removal is eligible to apply for an employment authorization document, but may not travel outside of the United States, adjust status to that of a lawful permanent resident, or confer status on his or her family members. On the other hand, withholding of removal and protection under CAT are mandatory forms of relief and must be granted to those individuals who demonstrate that they meet the eligibility standard. Protection under CAT can take the form of withholding of removal or deferral of removal. Deferral of removal under CAT is for those individuals who are not eligible for withholding of removal (generally because of past criminal convictions) and means that the individual does not receive any lawful or permanent immigrant status in the United States, and may continue to be detained. Deferral of removal status also is subject to review and termination. 8 C.F.R. § 208.17(a), (b).