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DHS and DOJ Announce Interim Final Rule Limiting Asylum Eligibility

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Today, July 16, 2019, the Department of Homeland Security and Department of Justice issued a joint interim Final Rule that has been published in the Federal Register and is effective immediately.

The interim Final Rule aims to place additional restrictions on the asylum application process and limit the eligibility of individuals seeking to apply for asylum.

What is the Rule about?

The Departments of Justice and Homeland Security are revising 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

In a Nutshell:

With the passage of this rule, applicants for asylum who enter or attempt to enter the United States across the southern border, without having applied for protection in a third country outside their country of citizenship, nationality, or last lawful habitual residence, will not be eligible for asylum.

There are three limited exceptions for individuals who fall under the following categories:

(1) an alien who demonstrates that he or she applied for protection from persecution or torture in at least one of the countries through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country;

(2) an alien who demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11; or,

(3) an alien who has transited en route to the United States through only a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Who does this Rule apply to?

Aliens who enter or arrive in the United States on or after July 16, 2019, the effective date of this rule.

Why is this Rule concerning?

This rule would require asylum officers and immigration judges to apply this new bar on asylum eligibility when administering the credible-fear screening process applicable to stowaways and aliens who are subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act. It also limits eligibility of individuals who have not applied for asylum in a third country, prior to entering or attempting to enter the United States.

The regulation is now open for public commentary here. The comment period will close on August 15, 2019.