DOJ and DHS Issue Third-Country Asylum Rule

Heather Ham-Warren | July 2019

Earlier this week, the Trump administration announced major changes to U.S. asylum policy, referred to as the third-country asylum rule. Under the new policy—released by the Departments of Justice (DOJ) and Homeland Security (DHS), migrants planning on claiming asylum in the U.S. must apply in their home country or another country before entering the United States. Failure to have applied in a third country would make the individual ineligible for asylum relief with few limited exceptions.

DHS and DOJ issued the joint Interim Final Rule using the authority delegated by Congress in section 208(b)(2)(C) of the Immigration and Nationality Act to enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, the rule adds a new bar to asylum eligibility for a migrant who enters (or attempts to enter) the U.S. across the southern border, but who did not apply for protections where it was available in at least one third country outside the individual’s country of citizenship, nationality, or last lawful habitual residence through which he or she passed through on the way to the United States.

The exploitation of American asylum loopholes has garnered international attention in the past year as the number of meritless and frivolous claims has continued to rise. Additionally, there has been a drastic increase of child abuse including kidnapping and even recycling of children, a practice which allows individuals to present themselves as family units and thus benefit from family-detention limitations.

Unfortunately, despite these well-documented abuses, Congress has repeatedly refused to address the asylum loopholes.  Acting DHS Secretary Kevin McAleenan referenced the lack of legislative action in his statement on the new rule:

“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. Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits.”

Dan Stein, President of FAIR, echoed McAleenan’s sentiments in his own statement released Monday:

“Congress has repeatedly refused to take steps to close these easily-exploitable loopholes in our asylum laws. As a result, illegal alien apprehensions have soared in recent months to levels not seen for more than a decade, and asylum applications have risen nearly threefold from 2008 to 2018.”

Unsurprisingly, the American Civil Liberties Union (ACLU) immediately filed a lawsuit to block the new rule. The case, filed in the Northern District of California, argues that the administration violated regulatory guidelines when it fast-tracked the rule without a thorough public process.

Please stay tuned to FAIR as we continue to monitor this rule and subsequent lawsuit.