AMU Homeland Security Legislation Original

DOJ, DHS Issue New 'Third Country' Rule Making US Asylum Nearly Impossible

sylvia longmire contributorBy Sylvia Longmire
Columnist, In Homeland Security

On July 15, the Department of Homeland Security (DHS) announced that it would be publishing a joint rule with the Department of Justice (DOJ) that would dramatically limit the ability of migrants to seek asylum in the United States. As of July 16, any migrants en route to the United States will be required to seek asylum in a country they are transiting, which is usually Mexico. The only way they can request asylum in the United States is if they can show proof that their asylum request was denied by the third country.

Reducing the Burden on the US Immigration System

DHS Acting Secretary Kevin McAleenan stated in a press release, “Until Congress can act, this interim rule will help reduce a major ‘pull factor’ driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey.” He also indicated that the rule will reduce the burden on the U.S. immigration system caused by asylum seekers failing to request asylum in the first available country, as well as “economic migrants lacking a legitimate fear of persecution.”

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This is not the first time the Trump administration has attempted to severely limit the ability of migrants to request asylum in the United States. In November 2018, the White House attempted to ban people who cross the U.S.-Mexico border between ports of entry from entering the asylum process, limiting asylum requests to official border crossings.

However, U.S. immigration law clearly states that anyone can request asylum from anywhere on U.S. soil. Just three days later, a federal judge from the Northern District of California ruled against the asylum ban and issued a temporary injunction. In late December, the Supreme Court refused to allow the administration to enforce the policy.

Migration Protection Protocols

In January, the Trump administration also enacted the Migration Protection Protocols (MPP), under which migrants requesting asylum are sent to Mexico to await their immigration hearings. This wait can take up to a year or more, and many migrants have taken advantage of Mexico’s offer to bus them back to their home countries if they cannot wait that long. Although Mexico was designated as a safe country for the purpose of the MPP, President Trump has contradicted this in statements and speeches, calling Mexico “one of the most dangerous countries in the world.”

Trump and DHS have been trying to reach a formal “safe third country” asylum agreement with Mexico and Guatemala with mixed results. Mexico, which has refused to sign such an agreement in the past, agreed to do so if they could not significantly reduce the number of Central Americans arriving at the U.S. border. Assessments of this would occur in two intervals of 45 days, and the first deadline is on July 25.

Hours before DHS issued the press release, Guatemala’s constitutional court blocked President Morales from immediately declaring Guatemala as a safe third country for asylum seekers. According to Reuters, Morales had been widely expected to sign this agreement at a now-postponed summit with Trump in Washington, DC.

Will This New Ban Work?

Given that neither Mexico nor Guatemala have formally signed a “safe third country” agreement with the United States, it is unclear how DHS plans to enforce this new rule. There are three exceptions to the rule, and the most significant one in this case is the denial of asylum applications in transit countries.

Although Mexico has granted asylum to many applicants flooding its border over the last year, it can lawfully refuse these requests as pushback to the United States. If migrants can show that both Guatemala and Mexico denied their asylum claims, which they are more likely to do now since no agreement has been signed, this may not reduce asylum requests at the U.S. border at all.

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