In anticipation of the reported imminent attempt of as many as 5,000 Central Americans to enter the U.S. via the southern border and seek asylum status, President Trump issued a presidential proclamation that temporarily limits and suspends entry from Mexico for 90 days. At the same time, on or around Nov. 9, 2018:

  • The Department of Homeland Security (DHS) and Department of Justice (DOJ) released an interim rule detailing specific changes to asylum claim eligibility and procedure;
  • U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) published guidelines for implementing the new interim rule; and
  • The Center for Constitutional Rights (CCR), the Southern Poverty Law Center (SPLC), and the American Civil Liberties Union (ACLU) filed a federal lawsuit alleging that the Trump administration’s rule violates the Immigration and Nationality Act and Administrative Procedure Act.

President Trump’s proclamation “suspend[s] and limit[s]” the “entry of any alien into the United States across the international boundary between the United States and Mexico” but makes exceptions for lawful permanent residents and those who enter through a U.S. port of entry and properly present for inspection.

Despite this moratorium, individuals who enter as directed and undergo the required screening process may still seek asylum in the U.S., or request relief from persecution or torture, even if they present without proper documentation, the proclamation stated.

The Secretaries of State and Homeland Security must consult with Mexican government officials to plan for appropriate implementation of lawful procedure to ensure compliance with foreign policy, national security, and public safety interests, the President stated. These efforts may include attempts to dissuade some individuals from entering the U.S.

The rule states that DHS and DOJ are modifying required procedure for asylum eligibility under this injunction and that any individuals who are subject to the proclamation and enter the United States regardless will be ineligible for asylum.

Those who have a reasonable fear of persecution or torture may instead request withholding of removal status or pursue protection under the Convention Against Torture.

The interim final rule is effective beginning November 9, 2018 and comments are due by January 8, 2019.

Individuals who apply for asylum status must demonstrate a credible fear of persecution in their native countries to be approved. Guidance from the EOIR on the interim rule states that while credible fear standards for asylum are unchanged, the scope of the inquiry to determine credible fear will be expanded under the modified regulations.

USCIS issued a Nov. 9 memo instructing officers on how to process claims under the interim rule. This memo asserted that its guidance supersedes all previous published guidance on asylum and refugee procedure and gives instruction on certain limitations to the new asylum restriction, including:

  • The new asylum bar applies only to current and future applications.
  • The bar must involve only orders going into effect on or after Nov. 9, 2019; and
  • The bar is applicable only to a specific group of individuals attempting to enter on the southern border of Mexico.

Under existing law, expedited removal procedures—streamlined procedures for expeditiously reviewing claims and removing certain aliens—apply to those individuals who arrive at a port of entry or those who are specifically designated such as those who have entered illegally and are encountered by an immigration officer within 100 miles of the border and within 14 days of entering.” The interim final rule does not change this framework, the guidance notes.

The ACLU, SPLC, and CCR have filed a federal lawsuit challenging the asylum proclamation and rule, charging the Trump administration with violating the Immigration and Nationality Act and the Administrative Procedure Act. The case, East Bay Sanctuary Covenant v. Trump, was filed in federal court in San Francisco.

Plaintiffs argue that together, the rule and proclamation “bar people from obtaining asylum if they enter the United States somewhere along the southern border other than a designated port of arrival, in direct violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar.” In addition, the complaint states, the government published the rule “without the required procedural steps and without good cause for immediately putting the rule into effect.” Plaintiffs seek a declaration that these actions violate the INA and APA, and an order enjoining the proclamation and rule.

Reportedly, several hundred migrants have arrived in Tijuana just south of the border, and many more are still more than a thousand miles away.

An estimated 5,000 are reported to be in Guadalajara, where several thousand have received temporary visas to remain in Mexico.

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