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Peter Margulies, Mar. 3, 2020
"On Feb. 28, the U.S. Court of Appeals for the Ninth Circuit issued decisions that cast substantial doubt on the legality of two Trump administration rules on asylum. In a surprising decision in Innovation Law Lab v. Wolf, a panel consisting of Judges William A. Fletcher, Richard A. Paez and Ferdinand F. Fernandez held that the so-called “Remain in Mexico” policy was inconsistent with the Immigration and Nationality Act (INA); Judge Ferdinand dissented. In East Bay Sanctuary Covenant v. Trump, the same panel—in a less surprising move—held that the president lacked power under the INA to issue a rule categorically denying asylum to foreign nationals who had entered the country at a point along the southern border that the government had not officially designated as a port of entry. This policy has sometimes been referred to as Asylum Ban 1.0, to distinguish it from the third country rule (sometimes called Asylum Ban 2.0), which bars asylum for foreign nationals who, prior to seeking to enter the United States, traveled through another country that offered refugee protections.
The immediate impact of these rulings on asylum seekers will be limited. The Ninth Circuit stayed its ruling, allowing the “Remain in Mexico” policy—which the administration calls the Migrant Protection Protocols (MPP)—to continue while the government sought review by the U.S. Supreme Court. In East Bay, the court’s ruling affirms a district court injunction that has been in effect for more than a year, after both the Ninth Circuit—in an opinion by conservative Judge Jay Bybee—and the Supreme Court denied stays. Nevertheless, the careful analysis in both Ninth Circuit decisions represents a vital counterweight to the government’s cavalier reading of the immigration statute. ...
... Feb. 28 was an important day in the Ninth Circuit for immigration law, suggesting limits to the government’s attempts to restrict asylum seekers. The administration can still point to the Department of Homeland Security third country rule, which bars asylum for anyone who prior to seeking to enter the United States has passed through any country—including but not limited to Mexico—that has approved the U.N. Refugee Convention or Protocol or the Convention Against Torture; the Supreme Court stayed an injunction against this rule in September 2019. In addition, the administration has negotiated asylum cooperation agreements (ACAs) with Guatemala, Honduras and El Salvador. The United States is using the ACAs to offload a growing number of asylum seekers to these unsafe countries, under an INA provision, 8 U.S.C. § 1158(a)(2)(A), which precludes judicial review of such pacts. Against the backdrop of the third country rule and the ACAs, the Ninth Circuit’s decisions were a salutary judicial check. Definitive word on the legality of both the asylum ban and the MPP will come if the Supreme Court considers the merits of each policy."