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PRACTICE ADVISORY:
HOW TO FIGHT THE ASYLUM BAN'S APPLICABILITY TO REFUGEES SUBJECTED TO THE U.S. GOVERNMENT’S TURNBACK POLICY PRIOR TO JULY 16, 2019
As early as 2016 the U.S. government began implementing a policy to restrict the entry of asylum seekers by having CBP officers turn back asylum seekers at the Port of Entry (POE), who were instructed to state reasons such as a lack of capacity to process their claims (there is no clear evidence that there has ever been a capacity issue). In the spring of 2018 the U.S. government formalized this “Turnback Policy” and expanded it from the San Ysidro POE all along the southern border. The U.S. government began “metering” - counting the number of asylum seekers allowed in each day - and created “waitlists” that are maintained by Mexican immigration officials or third parties.
On July 16, 2019 the U.S. government issued a joint interim final rule entitled “Asylum Eligibility and Procedural Modifications” which, with limited exceptions, establishes a per se rule requiring mandatory denial of asylum to all asylum seekers who do not first apply for asylum, and are denied, in at least one country they pass through before arriving in the U.S. Known as the Asylum Ban, this rule is being applied by all branches of the Executive, including USCIS (DHS) and EOIR (DOJ).
These two policies intersect to prejudice asylum seekers who sought asylum at a U.S. POE prior to July 16, 2019 and were told to wait and who were only then allowed to enter on or after July 16, 2019, and who were thus consequently denied asylum due to entering on this later date. By following the U.S. government’s established case processing procedures these asylum seekers effectively are now suffering a retroactive application of the Asylum Ban. On November 19, 2019 the District Court for the Southern District of California certified a class of “all non-Mexican noncitizens who were denied access to the U.S. asylum process before July 16, 2019 as a result of the Government’s metering policy and continue to seek access to the U.S. asylum process.” Al Otro Lado v. McAleenan.
READ THE PRACTICE ADVISORY HERE.
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