Immigration Information :: An Asylum Law Update

The Supreme Court recently allowed the Trump administration to prevent most Central American migrants from seeking asylum in the United States. Current threats to U.S. asylum law are complicated, but we feel compelled to make every effort to understand the issues.

Because of the complexity of the matter, even this summary is lengthy. I strongly encourage everyone to read — in full — each source referenced here. Every link included in this summary provides more information and detail.

Supreme Court Ruling in Barr v. East Bay Sanctuary Covenant, issued Sept. 11, 2019

BACKGROUND:

Asylum Law

United States codified asylum law is that, “in general, any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival)” “may apply for asylum.”

There are a few exceptions to this rule: aliens must apply for asylum within 1 year of arrival in the United States; aliens who have previously had an application for asylum denied may not apply again unless the circumstances affecting their eligibility for asylum have materially changed; and aliens may not apply if the Attorney General determines that they may be removed from the United States to a safe third country.

All of this means that asylum-seekers crossing at the southern border are not “illegals,” regardless of whether they present themselves at a Port of Entry, swim the Rio Grande, walk through the desert, or are smuggled in by coyotes. They are asylum seekers and it is legal to seek asylum from within the United States, regardless of how one has entered. It is also legal to travel to a U.S. Port of Entry from anywhere in the world and request asylum.

Barr Interim Final Rule

July 16, 2019 – Attorney General William Barr issued what’s referred to as an “interim final rule” stating that “with limited exceptions, an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum.”

This is different from the “safe third country” exclusion to the United States asylum statute. According to the statute, a “safe third country” must have a bilateral or multilateral agreement with the United States to be such. It must also be a country where the alien’s “life or freedom” would not be threatened due to one of the categories for asylum (race, religion, nationality, political opinion, or membership in a particular social group). Finally, the alien must have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

The United States currently has a “safe third country” agreement with Canada. The Trump administration has been seeking to make such agreements with Mexico and Guatemala, and the Guatemalans have signed something that is not precisely a “safe third country” agreement. However even if the Mexican and Guatemalan governments sign an agreement with the US, neither country likely meets the additional criteria of being a place where the alien’s “life or freedom” will not be threatened or where the alien will have “access to a full and fair procedure.”

At any rate, the Barr interim final rule only states that aliens must apply for protection in any “third country” through which they pass on the way to the United States, regardless of whether that country has a “safe third country” agreement, or is a safe country for asylum seekers in the most generic sense of the word “safe.” This is a major deviation from the asylum statute that is US law.

Timeline: Injunctions and Stays

Immediately after the Barr rule was issued, several immigrants’ rights organizations filed suit in U.S. District Court in California against the Barr rule. These groups include East Bay Sanctuary Covenant, the ACLU, the Southern Poverty Law Center, Al Otro Lado, and others. Their contention is that the rule is not legal.

July 24, 2019 – District Court Judge Tigar issued a preliminary injunction against the Barr rule (in other words, Judge Tigar ruled that the Barr rule could not be implemented while the suit to determine the legality of the Barr rule was ongoing). Judge Tigar’s reason for issuing the injunction was as follows: “Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress [emphasis added]. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress [emphasis added]. This new Rule is likely invalid because it is inconsistent with the existing asylum laws.”

August 9, 2019 – The Attorney General appealed the injunction to the 9th Circuit (the Circuit over California, Arizona, and some other states). The 9th Circuit limited the injunction to the states within the circuit, which meant that—of the southern border states—the injunction continued to apply to California and Arizona, but no longer applied to New Mexico or Texas. In plainer English, asylum seekers could continue to come to the border at California and Arizona without worrying about first applying for asylum in a “third country,” but asylum seekers at the border in New Mexico and Texas were turned away. Respite centers on the US side of the border in Texas saw an immediate drop off in asylees coming through—from hundreds a day (for the last few years)—to none at all.

September 9, 2019 – Judge Tigar of the District Court again extended the injunction to the entire country.

September 10, 2019 – The 9th circuit again limited the injunction to the 9th circuit only.

(Do you have whiplash yet?)

September 11, 2019 – The U.S. Supreme Court issued a stay of the injunction—meaning that the Barr rule is again in force and applied to the entire southern border—while the suit regarding the legality of the Barr rule proceeds. The September 11 decision is a procedural decision, not a decision on the merits of the case. That means their decision is not about whether the Barr interim final rule is legal but only about whether the injunction should be in force. According to the ruling, the stay is to remain in effect while the 9th Circuit considers the legality of the rule and will continue to remain in effect if the 9th Circuit’s decision about the legality of the rule ends up being appealed to the Supreme Court.

SUPREME COURT RULING:

The Supreme Court gave no reason for granting the stay. We do not know the make up of the votes in favor of or against the stay. We do know that Justice Sotomayor wrote a formal dissent and Justice Ginsberg joined the dissent. Justice Sotomayor’s writing is worth reading in its entirety and will be included in the links below.

In my opinion, there are 3 reasons why Justice Sotomayor’s concerns about the granting of the stay and about the Barr rule itself should also be of concern to members of MWEG.

First, Justice Sotomayor points out that “this Nation has long kept its doors open to refugees” and

“the stakes for asylum seekers could not be higher.” In April 2016, when Elder Patrick Kearon of the Seventy eloquently reminded us of our responsibility toward refugees, he stated that there were “an estimated 60 million refugees in the world today […] and half of these are children.” That was 2016. A report from Relief Web issued June 20 of this year (2019) for World Refugee Day says there are currently 70.8 million people displaced. In the months since June we know at least 70,000 more were displaced by Hurricane Dorian in the Bahamas. The refugee crisis in the world today is immense and steadily growing. Many arguments can be made that, as Americans and as members of the church, our role most emphatically is to be our brother’s keeper.

Second, Justice Sotomayor explains that the Government should not have “implemented its rule without first providing the public notice and inviting the public input generally required by law.” As watchdogs of ethical government, it is concerning to us that the Barr rule is an attempt to change procedures that were established by Congress and that should only be changed by Congress.

Third, Justice Sotomayor expresses concern that the Supreme Court should not be issuing a stay under these circumstances. A stay from the Supreme Court should only be issued in “extraordinary” circumstances. It is her opinion that the Government’s appeal to the Supreme Court, rather than accepting the decision of the lower courts regarding the injunction, is inappropriate.

Mark Joseph Stern, writing for Slate, explains that under the Trump administration (which has been in power for less than 2 ¾ years), “the DOJ has filed at least 20 applications for stays at the Supreme Court.” Under George W. Bush and Barack Obama (a combined 16 years in office), the DOJ filed eight applications for stay total. It is concerning both that the DOJ under the Trump administration is filing applications for stay at the Supreme Court seemingly as a matter of routine (instead of reserving this process for extraordinary circumstances) and concerning that the Supreme Court under the Trump administration seems to be accepting of this process.

IMPACT:

(Or, in other words, why we should care)

For the reasons outlined above, we should be very concerned that the Trump administration’s use of applications for stay from the Supreme Court is an attempt to circumvent the checks and balances of both the legislative branch (i.e., issuing rules without Congress) and the judicial branch (i.e., ignoring the processes of the lower courts).

We should also, of course, be concerned for those asylum seekers—from Central America and from other countries, including many from Africa who travel to Mexico before entering the United States—who are now trapped on the Mexican side of the border. They are stuck in Mexico through a combination of the Barr rule about applying for asylum in any country passed through on the way to the US, and the “Migrant Protection Protocol” also known as “MPP” or “Remain in Mexico,” which began to be implemented in January 2019. The Barr rule is keeping anyone from a country other than Mexico from applying for asylum at the US border. Prior to the Barr rule’s implementation, under MPP many asylum-seekers were allowed to apply for asylum at the border, but then sent back to Mexico to await adjudication rather than being allowed to enter the United States, either as a detainee or released to a US-based sponsor. (MPP is worthy of its own information post which we shall make in the future.)

Northern Mexico is often not a safe place for Mexicans, it’s not a safe place for relief workers, and it’s definitely not a safe place for asylees to wait. Asylum seekers stranded there are at risk from cartels, kidnappers (who expect that the asylees have relatives within the United States to pay ransoms), extortionists, and general prejudice. There are documented stories of Central American asylum seekers who have been kidnapped by cartels, taken to the US border by the kidnappers after their relatives in the US have paid their ransoms, and then been sent right back to Mexico by US CBP (see the LA Times article referenced at the end).

Asylees are kidnapping targets because most have relatives in the United States already and are coming to join them. They are prepared for the journey itself and then to live with their relatives in the US and have their support while they get settled. They are not prepared to set up their lives in Mexico, to find homes or employment there, and most of them—at this stage in their journey—are probably running out of money. There are many relief organizations prepared to help asylees on the US side of the border. Several of those organizations have been scrambling for the last month to get set up on the Mexican side of the border instead, but it isn’t necessarily safe for American volunteers to be in those parts of Mexico either. We know of at least one Mexican shelter worker—a priest—who was kidnapped in August and has not been found.

As members of MWEG aim to “safeguard and enhance the legitimacy of democratic institutions and principles,” we must pay close attention to challenges to our nation’s system of checks and balances and to attempts to circumvent established law. We must also continue to advocate for “laws, regulations, [and] policies” that will “protect the dignity and fundamental human rights of all God’s children.” This attempt to halt asylum-seeking at our southern border does neither.

Sources referenced and/or consulted:

• Supreme Court decision and Sotomayor dissent
• US asylum code
• Barr interim final rule
• Analysis of the U.S. agreement with Guatemala and why it is not precisely a “safe third country” agreement
• District court order granting initial injunction (dated July 24, 2019)
• Slate article about the Supreme Court’s “Shadow Docket”
• Tucson Sentinel article about “devastating” SCOTUS asylum ruling
• AILA press release on SCOTUS ruling, including AILA’S recommendations for “commonsense” steps to improve the asylum process
• “Refuge from the Storm,” April 2016 General Conference talk by Elder Patrick Kearon
• Statistics from World Refugee Day, June 2019
• News article from LA times about kidnappings on the Mexican side of the border

---

Beth Green is the immigration lead mentor for Mormon Women for Ethical Government.

---