Attempts to Limit Asylum for Third Country Transit

The Rule Limiting Asylum Claims

On July 16, 2019, the U.S. Department of Justice (DOJ) and U.S. Department of Homeland Security (DHS) published a joint rule in the Federal Register attempting to limit access to asylum for individuals who traveled through a third country on their way to the United States.

With limited exceptions, the new rule barred asylum for any person 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.”

Legal Challenges

The impact of this new bar to asylum eligibility was widespread for those:

1. inside the US,
2. forced to wait in Mexico while trying to access the immigration court system,
3. illegally metered by waiting in a queue to be processed by Customs and Border Protection (CBP), or
4. forced to wait in Mexico under the “Migrant Protection Protocols” (MPP).

Litigation Ongoing

East Bay Sanctuary et al. v. William Barr et al.

The ACLU filed a lawsuit in a California district court to enjoin the new rule. The Federal 9th Circuit Court of Appeals limited an injunction issued by the lower district court to apply only to AZ and CA.  On September 11, 2019, the United States Supreme Court issued a decision staying the injunction.  The matter remains in litigation.

Metering at the Southern Border before July 16, 2019.

Al Otro Lado v. Wolf

In November 2019, the court granted a preliminary injunction so that the government must not rely on the third country transit ban as a basis to deny asylum to non-Mexican asylum seekers who were metered at the southern border before July 16, 2019. The court subsequently granted a motion for clarification of the preliminary injunction.  As such, the injunction applies to all class members, including those with final orders denying them asylum. DHS and the Executive Office for Immigration Review (EOIR) are bound by the terms of the injunction and must take affirmative steps to reopen or reconsider final decisions denying asylum under the third country transit ban rule.

3rd Country Transit Ban

In July 2020, two federal courts vacated the third country transit ban.

Capital Area Immigrants’ Rights Coalition et al. v. Donald J. Trump et al.

The court issued a nationwide injunction preventing enforcement of the rule as it violated the Administrative Procedures Act.

East Bay Sanctuary Covenant v. Barr, No. 19-16487 (9th Cir. 2020)

The Ninth Circuit Court of Appeals also vacated the rule for violating the Administrative Procedures Act and for being inconsistent with 8 U.S.C. §1158.

For Those in Removal Proceedings

The U.S. District Court for the District of Columbia’s July 2020 decision enjoined the third country transit ban nationwide.

For Those with Asylum Denials

If you appealed your asylum denial under the third country transit ban to the Board of Immigration Appeals (BIA), and your appeal remains pending, consider a motion to remand with the Board, citing the Capital Area Immigrants’ Rights Coalition.

If you have cases where asylum was denied under the third country transit ban, consider filing motions to reopen with EOIR to request a grant of asylum. Such requests can argue equitable tolling to address time bars for motions to reopen, or request that EOIR reopen sua sponte to address intervening case law.

Consider a motion to reopen if you were metered at the southern border and later subjected to the third country transit ban rule.