Prof. Peter Margulies on the New Asylum Rule

Prof. Peter Margulies, Nov. 21, 2019

"In a new rule, the Department of Homeland Security has taken key steps to implement what it calls asylum cooperation agreements (ACAs) signed earlier with Guatemala, Honduras and El Salvador. The rule authorizes removal of asylum seekers at the southern border of the United States to any of the above-named countries, as long as the removed individuals are not nationals of the particular country that will receive them. Moreover, because Homeland Security has issued the rule under 8 U.S.C. § 1158(a)(2)(A), a provision of the Immigration and Nationality Act (INA) authorizing safe-third-country agreements, the operation of the new rule will be largely immune from judicial review. Although questions surround the implementation of the rule in the Central American countries that have signed ACAs, the new rule will likely reshape asylum claims at the southern border.

Once fully implemented, the ACA rule will potentially apply to any foreign national seeking asylum at the southern border, not merely asylum seekers who have transited through one or more of the countries that have signed ACAs. In other words, under the rule, Homeland Security could send a national of India to Guatemala, Honduras or El Salvador, if that individual wishes to claim asylum at the southern border. In this way, the ACA rule complements Homeland Security’s “Asylum Ban 1.0,” which bars asylum for anyone seeking to cross the southern border at a location not officially designated as an entry point by immigration officials (see my post here), and the department’s “third-country asylum rule” (sometimes called Asylum Ban 2.0), which bars asylum to anyone who passed through a third country on the way to seeking asylum in the United States (see my post here). Courts, including the U.S. Court of Appeals for the Ninth Circuit, are weighing challenges to the two earlier asylum measures. A preliminary injunction has halted Asylum Ban 1.0, while the Supreme Court issued a stay of the preliminary injunction against Asylum Ban 2.0. In each case, the courts will have to consider whether the ACA rule supersedes either policy, limiting asylum claims independent of the validity of the earlier measures. ... [much, much more...]"