City Bar Statement Opposing the Presidential Proclamation and Interim Final Rule to Limit Asylum Eligibility

The New York City Bar Association (City Bar) opposes the interim final rule entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,” which would eliminate the ability of those who enter the United States unlawfully at the southern border to seek asylum. On November 9, 2018, the U.S. Department of Homeland Security (DHS) and U.S. Department of Justice (DOJ) jointly issued interim final regulations which will restrict asylum eligibility to those who enter the United States at a port of entry.^[1] This rule is contrary to U.S. law and international obligations and undermines the U.S. role as a worldwide leader in the protection of refugees.

The City Bar and its 24,000 members have a longstanding mission to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and advocate for access to justice in support of a fair society. Today’s Presidential Proclamation[2] and interim regulations purport to circumvent the legislative process and allow the executive branch to rewrite the law to address a manufactured crisis of border crossers.[3]

Under the Immigration and Nationality Act, (INA) § 208(1), “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of  arrival  and  including  an  alien  who  is  brought  to  the  United States  after  having  been  interdicted  in  international  or  United States  waters),  irrespective  of  such  alien’s  status,  may  apply  for asylum  .  .  .”).  Nonetheless, today’s rule would restrict the ability to apply for asylum to those who enter the U.S. at ports of entry.

While the U.S. military has been sent to the border in response to a so-called caravan that the Trump Administration views as a crisis,[4] media reports show that, in fact, the caravan is comprised primarily of Hondurans fleeing violence and poverty.[5] Today the U.S. Government has released regulations, and the President has issued a proclamation, that will undermine the rights of all asylum seekers.

The Notice of Interim Rulemaking (NIR) cites the high rate of positive credible fear findings—currently 89%—as a reason why the regulations governing asylum must be changed,[6] rather than seeing the high credible fear passage rate as proof of the extremely dangerous conditions these asylum seekers have fled. In fact, the increase of credible fear claims by migrants from Honduras, El Salvador, and Guatemala corresponds with increasing violence and control of large parts of those countries by transnational criminal organizations whose power and control is often minimized by the term “gangs.” In fact, the U.S. Department of State has issued travel warnings for U.S. citizens to avoid these countries.[7]

Although the interim regulations would allow for those fearing return to their countries to seek withholding of removal under INA § 241(b)(3) or protection under the Convention against Torture (CAT), those protections are in no way the equivalent of asylum. If an applicant wins either withholding of removal or CAT, he or she is ordered removed and the removal order simply cannot be enforced as to that country.[8] Many such people are ordered to report to ICE regularly and to keep a passport on hand to effectuate removal should conditions improve in their home countries. There is no ability for the individual who has won to improve his or her immigration status in the U.S., to ever travel outside of the U.S. and be permitted to return, or to petition for family members to come to the U.S. Moreover, the reasonable fear interview[9] that such individuals will be required to undergo, in place of the credible fear interview to which they are currently entitled, will make it much less likely that they will ever receive a day in court in the U.S. An asylum seeker at a credible fear interview must prove that he or she has a “significant possibility’ of establishing asylum eligibility, whereas an applicant subjected to the reasonable fear interview process must show a “reasonable possibility” of persecution or torture under 8 CFR 208.31(c) to even have the opportunity to be placed into removal proceedings and then meet a higher, more likely than not, burden of proof before an immigration judge.

Limiting protections to those afforded by withholding of removal or CAT does not comply with international law. The Convention Relating to the Status of Refugees states that the “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”[10] The inability to become a citizen or to reunite with family members is a penalty and is therefore impermissible under the Convention.

The proclamation and interim regulations do not comply with existing statutory law, which only Congress can amend, are ill-advised and are aimed only to hurt the most vulnerable who cross the southern border because they have no other options.[11] The President should rescind the Proclamation, and the United States government should rescind the regulations.

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.

The City Bar’s Immigration & Nationality Law Committee addresses diverse issues pertaining to immigration law and policy, including the prolonged detention of non-citizens, constitutional issues impacting immigration legislation, and questions arising from claims for international human rights protection such as political asylum. www.nycbar.org