MarvinHeemeyer
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On July 16 of this year, the Department of Homeland Security and the Department of Justice issued a final interim rule by which they amended their regulations
The new Rule, which became known in the media as the "transit ban" and in immigration circles as the "Asylum Ban 2.0," should have been a big deal. Nevertheless, as tends to happen in this Year of Our Lord 2019, it was lost in the shuffle. In this particular case, the dangling set of shiny keys that grabbed our collective attention was, admittedly, a particularly newsworthy one--we discovered that the Amazon was in flames. Days later, Brazil's recently-elected president Jair Bolsonaro responded to the outrage by shouting "Fake News" and telling the G7 to shove its aid package where the sun don't shine.
Not long thereafter, the Ban was back in the news. On September 11, the Supreme Court issued an unsigned opinion in which it stayed the 9th Circuit's injunction of the ban (in other words, the Court ruled that the ban would stay in effect while litigation over its validity makes its way through the courts--a process which could take years). It was a big win for the Trump Administration (Trump himself used the words "big win" on Twitter, if memory serves). Again, however, the ban skirted under our national radar. This time the culprit was Sharpie-gate, a far more interesting (and frankly hilarious) development than an unsigned SCOTUS opinion regarding a travel ban that few of us even knew existed.
Still, distractions aside, we all have good reason to care about the asylum ban. For liberals, it's simple--the ban is yet another impediment to relief for the roughly 2,200 people who cross our southern border every day. But the ban should be problematic for conservatives too, and I'll do my best to explain why. But first, some background for the uninitiated:
What is asylum?
Asylum is one of three forms of what immigration attorneys refer to as "fear-based" relief. The other two are Withholding of Removal and relief under the international Convention Against Torture (CAT), of which the United States is a member state.
Very basically, to win an asylum claim, the applicant must demonstrate a "well-founded fear of persecution" in her home country based on either past persecution or a risk of future persecution if returned to that country. That fear must be both subjective and objective; that is, not only must the applicant herself fear such persecution but that fear must be also objectively "reasonable." Additionally, the persecution must be "on account of" the applicant's race, religion, national origin, political opinion, or membership in a particular social group. Finally, the persecution must either be carried out (1) by the government of the home country or (2) by some non-state actor which the government is either unwilling or unable to control.
Asylum applications can be affirmative or defensive. In an affirmative application, the applicant requests asylum either upon arrival to the US or, subject to a few exceptions, within a year of such arrival. In defensive asylum, the applicant requests after having received a Notice to Appear (NTA) in immigration court--essentially a charging document in which the government alleges that the applicant is present in the US unlawfully and is subject to deportation.
What was the first Asylum Ban?
Back in 2018, the Trump Administration announced a similar rule by which it barred asylum to anyone who did not enter the United States at a point of entry. In other words, if you swam across the Rio Grande or hiked through the desert, you were ineligible for asylum. That rule was quickly challenged in court, and unlike with the more recent rule, the Supreme Court in that case determined that the first ban would not go into effect until it had been fully litigated in the courts. As the New Yorker does an excellent job of explaining, refusing to stay the injunction of the first ban was likely an easier decision for the Court since the Immigration and Naturalization Act specifically creates the opportunity for anyone "physically present" in the US to apply for asylum regardless of manner of entry.
How is the Asylum Ban 2.0 different?
With the new rule, the Trump Administration has shifted its focus from the manner of entry to another hot topic of asylum law--the so-called "Safe Third Country" exception. Under US law (even prior to the promulgation of Travel Ban 2.0), an applicant may not apply for asylum in the United States if the applicant had already been physically present in a Safe Third Country--that is, a country in which the applicant (1) did not have a well-founded fear of persecution and (2) had a "full and fair" opportunity to seek asylum.
To be clear, US law has long recognized a "Safe Third Country" exception to asylum, but Safe Third Countries had to be designated as such by a formal agreement, and until recently, the only state with which the US had ever formed such an agreement was Canada. More recently, however, the Trump Administration reached similar agreements with Honduras and Guatemala. Unsurprisingly, the deals provoked international outrage--after all, Honduras and Guatemala can hardly be considered "safe"--the State Department has issued travel warnings for both, and the countries have the fifth- and sixteenth-highest murder rates in the entire world, respectively.
What the new ban does is essentially eliminate the safety requirement (and obviate the need for Third Country agreements). Now, mere transit through any country other than the one from which the applicant seeks to escape is a bar to asylum in the United States. And that is huge.
From 2015-2017, about 26,500 people were granted asylum in the US. Of that number, about 8,500--almost one-third--were from the Central American's Northern Triangle of Guatemala, Honduras, and El Salvador. Over the same period of time, about 5,500 successful applications were lodged by Chinese. For reference, China's population is roughly 50 times greater than that of the entire Northern Triangle.
Thus, the new rule effectively denies asylum to the three countries that most seek it. Any refugee from Guatemala, Honduras, or El Salvador who boards the Death Train and makes the perilous journey to our southern border on or after July 16, 2019, is effectively ineligible to seek asylum.
The Asylum Ban 2.0 is Inconsistent with Conservative Immigration Policy
Now for the tricky part. I want to set aside the more traditional arguments on either side of the immigration debate. On the left, these include "We are a nation of immigrants;" "We stole this land in the first place;" and "Give me your tired, your poor, your huddled masses yearning to breathe free." On the right, they tend to be "We are a nation of laws;" "Our social safety nets are already spread thin;" and "'legal good, illegal bad.'"
What makes the Asylum Ban 2.0 politically incomprehensible is that does nothing to assuage the concerns of either side of the aisle.
First of all, contrary to the President's many suggestions otherwise, asylum is discretionary--the Attorney General does not have to grant it. Imagine, for example, that an active member of MS-13 effectively demonstrates a well-founded fear of persecution in his home country based on his membership in a Particular Social Group. Despite having made a prima facie case for asylum, the Attorney General could--and most certainly would--deny asylum.
Secondly, and perhaps more frustratingly, the Asylum Ban 2.0 will do little to deter migration and will only incentivize clandestine border crossings. Due to the Trump Administration's "Remain in Mexico" policy, asylum-seekers who attempt to enter the United States "legally" at recognized points of entry are sent back into the notoriously dangerous cities of northern Mexico to wait indefinitely while their claims are adjudicated. As a result, for members of this particularly vulnerable population, it simply makes more sense to cross the border por tierra o por agua and hope to fly under the radar in the United States.
The Administration's belief that it can deter immigration by making life harder for migrants is misguided, not only because it is inhumane but because it fails to take into account the gravity of the crisis in the Northern Triangle. This isn't your parents' immigration debate. Long gone are the days in which the majority of those crossing the border were Mexican laborers in search of a better life. These days, overwhelmingly, those arriving are refugees from borderline failed states.
Anyone who believes that the United States is capable of making immigration so difficult or uncomfortable--whether by building walls, separating families, or raiding apartment buildings--that these people would prefer to remain at home simply misunderstands what life is like in the Northern Triangle.
After all, asylum is a good thing. Asylees eventually become eligible to adjust their immigration status to that of lawful permanent resident--"green card" holders--and later full citizens. And even before they adjust their status, asylees can get work authorization. That means asylees don't have to work under the table. It means they pay taxes.
Finally, we mustn't forget that the alternatives to asylum are worse for everyone involved. Remember that I mentioned there were three forms of fear-based relief? Well, unlike asylum, withholding of removal and relief under the Convention Against Torture are not discretionary (such is the case because these obligations arise under the international law of non-refoulement). Similarly, whereas asylum offers a path to citizenship and legal residency, withholding and CAT relief create no such stability.
Almost all of us agree that legal immigration is good. Why, then, are we doing away with one of the few areas of our immigration law that, while strained and imperfect, consistently achieves results that are palatable to both sides of the aisle?
The new Rule, which became known in the media as the "transit ban" and in immigration circles as the "Asylum Ban 2.0," should have been a big deal. Nevertheless, as tends to happen in this Year of Our Lord 2019, it was lost in the shuffle. In this particular case, the dangling set of shiny keys that grabbed our collective attention was, admittedly, a particularly newsworthy one--we discovered that the Amazon was in flames. Days later, Brazil's recently-elected president Jair Bolsonaro responded to the outrage by shouting "Fake News" and telling the G7 to shove its aid package where the sun don't shine.
Not long thereafter, the Ban was back in the news. On September 11, the Supreme Court issued an unsigned opinion in which it stayed the 9th Circuit's injunction of the ban (in other words, the Court ruled that the ban would stay in effect while litigation over its validity makes its way through the courts--a process which could take years). It was a big win for the Trump Administration (Trump himself used the words "big win" on Twitter, if memory serves). Again, however, the ban skirted under our national radar. This time the culprit was Sharpie-gate, a far more interesting (and frankly hilarious) development than an unsigned SCOTUS opinion regarding a travel ban that few of us even knew existed.
Still, distractions aside, we all have good reason to care about the asylum ban. For liberals, it's simple--the ban is yet another impediment to relief for the roughly 2,200 people who cross our southern border every day. But the ban should be problematic for conservatives too, and I'll do my best to explain why. But first, some background for the uninitiated:
What is asylum?
Asylum is one of three forms of what immigration attorneys refer to as "fear-based" relief. The other two are Withholding of Removal and relief under the international Convention Against Torture (CAT), of which the United States is a member state.
Very basically, to win an asylum claim, the applicant must demonstrate a "well-founded fear of persecution" in her home country based on either past persecution or a risk of future persecution if returned to that country. That fear must be both subjective and objective; that is, not only must the applicant herself fear such persecution but that fear must be also objectively "reasonable." Additionally, the persecution must be "on account of" the applicant's race, religion, national origin, political opinion, or membership in a particular social group. Finally, the persecution must either be carried out (1) by the government of the home country or (2) by some non-state actor which the government is either unwilling or unable to control.
Asylum applications can be affirmative or defensive. In an affirmative application, the applicant requests asylum either upon arrival to the US or, subject to a few exceptions, within a year of such arrival. In defensive asylum, the applicant requests after having received a Notice to Appear (NTA) in immigration court--essentially a charging document in which the government alleges that the applicant is present in the US unlawfully and is subject to deportation.
What was the first Asylum Ban?
Back in 2018, the Trump Administration announced a similar rule by which it barred asylum to anyone who did not enter the United States at a point of entry. In other words, if you swam across the Rio Grande or hiked through the desert, you were ineligible for asylum. That rule was quickly challenged in court, and unlike with the more recent rule, the Supreme Court in that case determined that the first ban would not go into effect until it had been fully litigated in the courts. As the New Yorker does an excellent job of explaining, refusing to stay the injunction of the first ban was likely an easier decision for the Court since the Immigration and Naturalization Act specifically creates the opportunity for anyone "physically present" in the US to apply for asylum regardless of manner of entry.
How is the Asylum Ban 2.0 different?
With the new rule, the Trump Administration has shifted its focus from the manner of entry to another hot topic of asylum law--the so-called "Safe Third Country" exception. Under US law (even prior to the promulgation of Travel Ban 2.0), an applicant may not apply for asylum in the United States if the applicant had already been physically present in a Safe Third Country--that is, a country in which the applicant (1) did not have a well-founded fear of persecution and (2) had a "full and fair" opportunity to seek asylum.
To be clear, US law has long recognized a "Safe Third Country" exception to asylum, but Safe Third Countries had to be designated as such by a formal agreement, and until recently, the only state with which the US had ever formed such an agreement was Canada. More recently, however, the Trump Administration reached similar agreements with Honduras and Guatemala. Unsurprisingly, the deals provoked international outrage--after all, Honduras and Guatemala can hardly be considered "safe"--the State Department has issued travel warnings for both, and the countries have the fifth- and sixteenth-highest murder rates in the entire world, respectively.
What the new ban does is essentially eliminate the safety requirement (and obviate the need for Third Country agreements). Now, mere transit through any country other than the one from which the applicant seeks to escape is a bar to asylum in the United States. And that is huge.
From 2015-2017, about 26,500 people were granted asylum in the US. Of that number, about 8,500--almost one-third--were from the Central American's Northern Triangle of Guatemala, Honduras, and El Salvador. Over the same period of time, about 5,500 successful applications were lodged by Chinese. For reference, China's population is roughly 50 times greater than that of the entire Northern Triangle.
Thus, the new rule effectively denies asylum to the three countries that most seek it. Any refugee from Guatemala, Honduras, or El Salvador who boards the Death Train and makes the perilous journey to our southern border on or after July 16, 2019, is effectively ineligible to seek asylum.
The Asylum Ban 2.0 is Inconsistent with Conservative Immigration Policy
Now for the tricky part. I want to set aside the more traditional arguments on either side of the immigration debate. On the left, these include "We are a nation of immigrants;" "We stole this land in the first place;" and "Give me your tired, your poor, your huddled masses yearning to breathe free." On the right, they tend to be "We are a nation of laws;" "Our social safety nets are already spread thin;" and "'legal good, illegal bad.'"
What makes the Asylum Ban 2.0 politically incomprehensible is that does nothing to assuage the concerns of either side of the aisle.
First of all, contrary to the President's many suggestions otherwise, asylum is discretionary--the Attorney General does not have to grant it. Imagine, for example, that an active member of MS-13 effectively demonstrates a well-founded fear of persecution in his home country based on his membership in a Particular Social Group. Despite having made a prima facie case for asylum, the Attorney General could--and most certainly would--deny asylum.
Secondly, and perhaps more frustratingly, the Asylum Ban 2.0 will do little to deter migration and will only incentivize clandestine border crossings. Due to the Trump Administration's "Remain in Mexico" policy, asylum-seekers who attempt to enter the United States "legally" at recognized points of entry are sent back into the notoriously dangerous cities of northern Mexico to wait indefinitely while their claims are adjudicated. As a result, for members of this particularly vulnerable population, it simply makes more sense to cross the border por tierra o por agua and hope to fly under the radar in the United States.
The Administration's belief that it can deter immigration by making life harder for migrants is misguided, not only because it is inhumane but because it fails to take into account the gravity of the crisis in the Northern Triangle. This isn't your parents' immigration debate. Long gone are the days in which the majority of those crossing the border were Mexican laborers in search of a better life. These days, overwhelmingly, those arriving are refugees from borderline failed states.
Anyone who believes that the United States is capable of making immigration so difficult or uncomfortable--whether by building walls, separating families, or raiding apartment buildings--that these people would prefer to remain at home simply misunderstands what life is like in the Northern Triangle.
After all, asylum is a good thing. Asylees eventually become eligible to adjust their immigration status to that of lawful permanent resident--"green card" holders--and later full citizens. And even before they adjust their status, asylees can get work authorization. That means asylees don't have to work under the table. It means they pay taxes.
Finally, we mustn't forget that the alternatives to asylum are worse for everyone involved. Remember that I mentioned there were three forms of fear-based relief? Well, unlike asylum, withholding of removal and relief under the Convention Against Torture are not discretionary (such is the case because these obligations arise under the international law of non-refoulement). Similarly, whereas asylum offers a path to citizenship and legal residency, withholding and CAT relief create no such stability.
Almost all of us agree that legal immigration is good. Why, then, are we doing away with one of the few areas of our immigration law that, while strained and imperfect, consistently achieves results that are palatable to both sides of the aisle?
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