A panel of the U.S. Court of Appeals for the Ninth Circuit ruled on March 5, 2020, that the Trump administration’s “third-country” asylum rule cannot apply to a provisionally certified class of approximately 26,000 asylum-seekers who were turned away from the U.S. border with Mexico before July 16, 2019. On that date, the Departments of Homeland Security and Justice published a rule prohibiting many people who attempt to enter the United States after transiting through another country from applying for asylum in the United States unless they had first applied for and were denied protection in that third country.

Among other things, the court noted that it is the law, not the rule, that makes a person’s first arrival legally significant. Under the district court’s statutory interpretation, the court noted, a class member’s first arrival triggered a statutory right to apply for asylum and have that application considered. Nothing in the law or regulations suggests that a class member loses his or her statutory right to apply for asylum upon arrival because there is a government-imposed delay between when the person arrives and when the application is accepted and processed. “As the Rule was not in place at the time each class member’s right to apply for asylum attached, it makes sense that it would not apply,” the court said, denying the government’s motion for a stay of a lower court ruling pending appeal.

Meanwhile, under a separate ruling on March 4, 2020, a Ninth Circuit panel held that a policy that has forced 60,000 asylum seekers to wait in Mexico violates U.S. and international law, but granted the Trump administration’s request to keep its “Remain in Mexico” restrictions in effect until March 11 for review by the Supreme Court.

In a third decision, a Ninth Circuit panel ruled on February 28, 2020, that a rule and presidential proclamation denying asylum to persons who arrived at the U.S. southern border at points not designated by the government for admission and inspection of arrivals conflict with the plain language of the immigration statute.

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