On November 19, 2019, the United States Department of Justice and the Department of Homeland Security published a joint interim final rule pertaining to aliens who are subject to at least one of the Asylum Cooperative Agreements that the United States has entered pursuant to Section 208(a)(2)(A) of the Immigration and Nationality Act.
What are these Asylum Cooperative Agreements? Found within the Immigration and Nationality Act, is a seldom used rule that allows the United States to deny asylum to an individual who can be sent to a "Safe Third Country." This law allows the United States to remove an asylum seeker to another country with which the United States has entered into such an agreement. This third country would then determine whether this individual merits protection under its asylum laws.
Pursuant to the Immigration and Nationality Act, in order to remove an asylum seeker to a safe third country, the United States has to prove that (1) the person would not be persecuted in that third country; and (2) that third country can provide a "full and fair" procedure to request asylum.
Prior to the present administration taking office, the only Safe Third Country agreement was entered into between the United States and Canada and this agreement only applies to individuals who pass through Canada to enter the United States and who pass through the United States to enter Canada. This agreement does, however, allow individuals who pass through Canada to apply for asylum in the United States if the person passing through has a family member so long as the family member has legal status in the United States or is applying for asylum.
Ever since President Trump came into office, the United States has since entered into Safe Third Country agreements with El Salvador, Honduras and Guatemala. These agreements contain none of the exceptions provided for in the Safe Third Country agreement between the United States and Canada. Also, these agreements do not contain any provision that the agreement only applies to persons passing through these countries. In essence, what this means is that if an individual passes through Mexico to apply for asylum in the United States, that person might be removed to El Salvador, Honduras and Guatemala pursuant to these agreements. These rules technically could also apply to individuals from Mexico seeking asylum in the United States. What this means in real terms is that the United States could send any asylum seeker to El Salvador, Honduras and Guatemala and make them apply for asylum in one of those countries.
With this context in mind, let's go back and take a look at the new joint interim rule the United States Department of Justice and Department of Homeland Security just published. First, and foremost this rule only applies to aliens who arrive at a United States Port of Entry or enter or attempt to enter the United States ports of entry, on or after November 19, 2019.
Second, this rule clearly states that it only applies to aliens who are subject to these Safe Third Country agreements. The next question then becomes who exactly is subject to these agreements? Most news agencies believe that only those people who first pass through either Honduras, Guatemala or El Salvador are the ones subject to these agreements, but a careful review of the text of these agreements does not appear to support this position. In fact the text of the agreements only states who is not subject to the agreement, not who is subject to the agreement. For example, the Asylum Cooperative Agreement between the United States and Guatemala only states that it does not apply to citizens or nationals of Guatemala - it does not state who it applies to. This is an issue that will need significant clarification as this program moves forward.
Third, aliens who are subject to these agreements will have an opportunity to establish that it would be "more likely than not" that the alien's life or freedom would be threatened in the third country on account of a protected ground or that the alien would be tortured in the third country." Essentially, if the alien proves that they would be harmed in the third country in which they are being sent, they will be able to seek asylum in the United States. This "more likely than not" burden of proof is absurd and is way more difficult to prove than the asylum burden of proof where the alien must only show a "credible fear of persecution." Supporting such a heavy burden of proof often requires significant documentation and much preparation. The problem is that this burden of proof is being determined by asylum officers at the border immediately upon entry by the alien into the United States - by the time the alien goes through the first screening step, they will not have sufficient time to prepare their case and bring such evidence in order to meet this heavy burden. As a result, this makes it almost impossible for an alien to meet this exception.
Additionally, prior to implementation of this rule the Department of Justice and Department of Homeland Security are required to "make a generalized determination as to whether the third country grants asylum seekers access to a full and fair procedure." This is a joke. None of these "Safe Third Countries" have the resources to provide a "full and fair procedure."
If an asylum officer determines that an alien is not subject to an Asylum Cooperative Agreement, that the alien falls within an exception to each applicable Asylum Cooperative Agreement, or that the alien would more likely than not be persecuted on account of a protected ground, or tortured in each of the prospective receiving countries, then the alien is eligible to apply for asylum, withholding of removal or relief under the Convention Against Torture in the United States. If the alien doesn't meet one of these three requirements then the alien is not eligible to apply for asylum, withholding of removal or relief under the Convention Against Torture - this differs greatly from the previous third country asylum rule which still allowed individuals passing through third countries to apply for either withholding of removal or relief under the Convention Against Torture.
It is critical to point out that an immigration judge does not have jurisdiction to review an asylum officer's determination of whether this provision applies to a certain alien. Additionally, it is important to note that a federal immigration officer recently told a reporter from Reuters that aliens in this screening process are not allowed access to an attorney.
Finally, it is also important to point out that this new law will not apply to the following individuals: (1) unaccompanied children; (2) migrants with valid U.S. travel documents; (3) cases of public interest; and (4) separation of spouses and families.
This new rule is not surprising and is yet another attempt by the Trump Administration to undermine the asylum laws in the United States and put asylum seekers in harms way be sending them to countries with some of the highest murder rates in the world.
If you are concerned a friend or relative will be placed in this new program, you are welcome to contact Louisiana immigration lawyers at Liberty Law Group and we will be more than happy to provide you with a free consultation regarding this issue.