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Appeals Court Rules That Administration’s “Third Country Asylum Rule” Effectively Barring Immigrants from Central America Is Illegal


In July, a three-judge panel of the US Court of Appeals or the Ninth Circuit struck down the administration’s 2019 Interim Final Rule barring immigrants seeking asylum from entering the US if they failed to first apply for protection from persecution or torture “where it was available in at least one third country outside [their] country of citizenship, nationality, or last lawful habitual residence.” In doing so, the appeals court upheld the lower court’s decision, pointing out that the rule was illegal, the government had done “virtually nothing” to ensure that the countries applicants had to seek asylum from first were actually safe for them, that there was evidence contradicting the administration’s claim that immigrants could obtain safe protection in Mexico and these other countries, and the administration had failed to justify the claim that an immigrant who failed to file to obtain asylum in a third country before applying in the US was unlikely to have a successful claim.

The US Supreme Court had allowed the rule to go into effect while appeals courts decided on its legality, and there is no question that the administration will now appeal the merits of this decision back to the high Court. In addition, all asylum seekers have been temporarily blocked from applying for asylum under a separate directive that has been justified as necessary for public health and safety due to COVID-19. As a result, as of now, immigration has effectively been closed to everyone except lawful permanent residents and US citizens, although this COVID-19 order is also currently being challenged in federal court.

How The Rule Worked

The rule affected a number of families seeking to escape extreme violence in Central America. Immigrants seeking refuge not only had to first seek and be denied asylum in Mexico, but then also seek it in Guatemala or another country through which they traveled before they could apply in the US. Failing to do so would automatically translate into lacking a “credible fear of persecution” in one’s home country.

The Court Calls the Rule “Particularly Troubling”

The rule represented what one judge pointed out was likely “the most significant change to American asylum in a generation,” and yet the federal agencies had provided sparse justification for it; something that the judge labeled as “particularly troubling.” The judgement also makes it clear that it is Congress – not the Executive Branch – that controls asylum.

A Separate Victory for The Public’s Right to Notice & Comment On Rules That Affect Immigration

In a related decision, a challenge was brought against the same rule for different reasons in the US District Court for the District of Columbia, which ruled that the administration also violated administrative law by failing to go through notice and comment rulemaking, which allows the public to be notified and provide comments on proposed rules.

Legal Complications for Immigration Law Warrant Working with The Best Immigration Attorney

Immigration law is more complex now than ever, especially since so many proposals from the current administration have either been overturned or are currently being challenged in court. As a result, it is critical that if you have any immigration legal needs, you consult an attorney who dedicates themselves to the practice of immigration la. The Hauter Law Firm, PC does just that; contact our North Carolina immigration attorneys today for a free phone consultation to find out more.



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