U.S. Can’t Automatically Deny Asylum for Illegal Border Crossing
On November 9, 2018, President Trump had issued a proclamation that in combination with a rule promulgated by Department of Health Service (DHS) bars seeking asylum individuals who enter the United States from Mexico between ports of entry. The proclamation guts key due process protections for asylum seekers. Under unambiguous laws passed by Congress, all persons arriving in the United States, whether at or between ports of entry, have the right to seek asylum. Not everyone is eligible for that relief; but everyone deserves a full and fair opportunity to pursue it. The proclamation is a transparent end run around our laws and has already come under legal challenge. The underlying policy, which this country has always recognized is that if someone is fleeing their home country out of fear for their life, they have the right to request asylum in the United States, and that right does not depend on whether they entered the coutry lawfully. These policies have pre-dated the laws which required entry visas and were recognized when people could show up at a port of entry and request admission, which was granted, unless there was a good reason to deny entry.
On July 16, 2019, the Trump administration issued a joint interim final rule —often referred to as the “Asylum Ban 2.0”—which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. On September 11, 2019, the Supreme Court issued an order staying a prior injunction that had prevented the government from implementing the rule. The order means that the government can implement the Asylum Ban 2.0 while the case works its way through the courts.
The Trump administration lost its appeal of a court order that barred it from automatically denying the asylum applications of immigrants who crossed the border outside official ports of entry. The U.S. Court of Appeals for the Ninth Circuit, in San Francisco upheld the 2018 decision by a judge who ruled that the policy wasn’t consistent with immigration law.
The premise of the transit bar, according to the Administration, was that an asylum seeker must not really be in danger if he or she doesn’t apply for asylum in the first country that she enters.Another theory is that once someone is out of the country in which they are in danger, be it Columbia, El Salvador, Honduras or Guatamala, they are no longer in danger and don't qualify for asylum in the United States. These theories assume that when a person is fleeing, for example, from El Salvador, and you get to Guatemala, you believe you’ve reached a safe haven, and that Guatemala has a fully functioning asylum system. The facts do not bear this out. The reality, is that the reason people don’t sit in Guatemala or Mexico and seek asylum there is that they know they’ll continue to be in danger, from gangs who have been attacking them—or the perpetrator of the domestic violence they’re fleeing, or other types of danger—can easily locate them in Guatemala or Mexico; they will not be safe. And they also know that those countries do not provide a full, fair asylum process. Our New York asylum lawyers believes that you have to provide more resources and make the system more efficient, but you cannot simply end the process for asylum seekers.