The Third-Country Rule and United States Asylum Law

Cassandra Brumback*

Four months after Immigration and Customs Enforcement (ICE) officers arrested Roylan Hernandez-Diaz, he committed suicide in his Louisiana jail cell.  See Teo Armus, A Cuban Immigrant Asked for Asylum. After Months of Detention, He Killed Himself, ICE Says, Wash. Post (Oct. 17, 2019, 7:28 AM), https://www.washingtonpost.com/nation/2019/10/17/cuban-immigrant-asked-asylum-detention-killed-himself-ice/.  Hernandez-Diaz was one of approximately 590,000 asylum seekers to cross the southern border of the United States in 2019.  See Daniel Connolly, et al., Asylum Seekers in US Face Years of Waiting, Little Change of Winning Their Cases, USA Today (Sept. 25, 2019, 12:40 PM), https://www.usatoday.com/in-depth/news/nation/2019/09/23/immigration-court-asylum-seekers-what-to-expect/2026541001/.  His death is the latest shock to arise from a particularly chaotic and volatile few months at the border, where the Trump Administration’s ever-changing set of asylum guidelines have instilled fear and hopelessness in the migrant community.  See Armus, supra.

Many asylum seekers, particularly those from Central America, do not enter the United States as Hernandez-Diaz did because of the new Third-Country Rule (the Rule).  Adam Liptak, Supreme Court Says Trump Can Bar Asylum Seekers While Legal Fight Continues, N.Y. Times, (Sept. 11, 2019), https://www.nytimes.com/2019/09/11/us/politics/supreme-court-trump-asylum.html.  The Rule, introduced by Attorney General William Barr on July 16, 2019, turns away all asylum applicants that travel to the United States through a third country and fail to apply for asylum there before reaching the United States.  See 8 C.F.R. § 208 (Dep’t of Homeland Sec. July 16, 2019).

United States district courts are split in their treatment of the Rule.  See Liptak, supra.  Judge Jon Tigar of the U.S. District Court for the Northern District of California granted an injunction to prevent the Rule from coming into effect on July 24, 2019, but Judge Timothy Kelly of the U.S. District Court for the District of Colombia upheld the Rule on that same day.  See id.  Subsequently, when the Trump Administration appealed directly to the Supreme Court, the Court held that the Rule would remain in effect until the government’s appeal of Judge Tigar’s decision is heard by the Ninth Circuit.  See Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.); Liptak, supra.

The government argues that many asylum seekers do not have legitimate claims and that the Rule is necessary to control the influx of Central American migrants at the southern border.  See 8 C.F.R. § 208.13(c)(4) (2019).  In contrast, immigrant advocacy groups claim that the Rule harms vulnerable populations and contradicts existing asylum law.  See Liptak, supra.  Regardless, it is clear that the Ninth’s Circuit’s decision will have a great impact on U.S. immigration policy and on the lives of many Central Americans hoping to escape persecution in their home countries.  See id.

I.  The Rule’s Provisions

The Rule institutes a “mandatory 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.”  8 C.F.R. § 208.13(c)(4).  Although the Rule is broad, it contains three exceptions:

(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 CFR 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 CAT.

8 C.F.R. § 208.13(c)(4)(i–iii).  However, these exceptions do little to alleviate the harshness of the Rule.  See id.

The first exception requires a migrant to receive an asylum denial from a third country, which is a process that can take months, if not years.  See Liptak, supra.  Because many asylum seekers flee gangs that are present in every Central American country, it may not be realistic to expect migrants to wait for long periods of time in neighboring countries.  See id.  The second exception, per 8 C.F.R. § 214.11(a), applies only to minor victims of sex trafficking, which provides relatively narrow protection.  See 8 C.F.R. § 208.13(c)(4)(ii).  The third exception is largely inapplicable to most migrants because no Central American country meets the enumerated qualifications.  See id.; see United Nations High Comm’n for Refugees, States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol (2015), https://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html.

II.  Conflicting District Court Decisions

On July 24, 2019, Judge Kelly of the U.S. District Court for the District of Columbia issued an order that declined to enjoin the Rule from taking effect.  See Capital Area Immigrants’ Rights Coal. v. Trump, No. 1:19-CV-02117-TJK, 2019 WL 3436501, at *3 (D.D.C. July 24, 2019).  The court concluded that the Attorney General has broad authority to make immigration rules, and the Rule did not exceed that authority.  See id.

Later that same day, Judge Tigar of the U.S. District Court for the Northern District of California issued a nationwide injunction for the Rule.  See E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 931 (N.D. Cal. 2019), order reinstated, 391 F. Supp. 3d 974 (N.D. Cal. 2019).  Judge Tigar found that the Attorney General exceeded his authority because the Rule contradicts existing asylum law under 8 U.S.C. § 1158(a)(1).  See id. at 922.  The court reasoned that Congress had already created a “firmly-resettled bar” and a “third-country bar,” which preclude the Rule.  Id. at 930–41.  The firmly-resettled bar prevents migrants from obtaining asylum if they were “firmly resettled” in a third country before arriving in the United States.  § 1158(b)(2)(C).  The third-country bar states that asylum is not available to migrants that come from “a safe third country with which the United States has a qualifying agreement.”  § 1158(a)(2)(b).

Therefore, Judge Tigar reasoned that the subject matter in the Rule is already covered by existing legislation and that the President and Congress would need to enter into a formal agreement with another country to comply with the prior “safe third country rule.”  E. Bay Sanctuary Covenant, 385 F. Supp. at 940.  Because only one such agreement currently exists between the United States and Canada, migrants that travel through Mexico or any other Central American country before arriving in the United States cannot be prevented from applying for asylum.  See id.

III.  The Supreme Court’s Ruling

In Barr, the government appealed directly to the Supreme Court, which issued a short order concluding that the government may precede with enforcing the Rule while the appeal worked its way up to the Ninth Circuit.  See Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (mem.) (2019).  This decision, combined with the Court’s order allowing the Trump Administration to use Pentagon funds for the border wall and its decision upholding the travel ban, indicate the Court’s recent willingness to uphold the Trump Administration’s regulations on an emergency basis.  See Liptak, supra.  For now, the Rule stands, and it carries potential catastrophic consequences for migrants like Hernandez-Diaz.  See Armus, supra.

*Cassandra Brumback is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for the Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. Cassandra is also the Vice President of the Latin American Law Students Association and a research assistant for Professor Robert Lande. Last semester, she served as a law scholar for Professor John Bessler’s civil procedure class and as an intern for the Honorable George L. Russell III in U.S. District Court of Maryland. This summer, she will join Venable LLP as a summer associate. 

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