A new regulation posted Monday morning by the Departments of Justice and Homeland Security seeks to address the ongoing crisis at the southern border by making the eligibility requirements for seeking asylum in the United States stricter.
The rule, which was posted for review on Monday morning and goes into effect Tuesday, specifically deals with the asylum eligibility of “aliens who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States.”
The concept is simple: Where an applicant seeks asylum should be based on where an applicant first finds safety from whatever country they’re fleeing, rather than on personal preference of country.
“In sum, this rule provides that, with limited exceptions, an alien who enters or arrives in the United States across the southern land border is ineligible for the discretionary benefit of asylum unless he or she applied for and received a final judgment denying protection in at least one third country through which he or she transited en route to the United States,” the rule reads.
If migrants leave a country in Central America and come to the United States, the new rule says they wouldn’t be eligible for asylum here unless they first went through the asylum application process somewhere along the way and were denied.
The authority for making the rule can be found in section 208 of the Immigration and Nationality Act, which deals with asylum and refugee status. That section of the INA also gives the attorney general and secretary of Homeland Security “the authority to promulgate regulations establishing additional bars on eligibility to the extent consistent with the asylum statute, as well as the authority to establish ‘any other conditions or limitations on the consideration of an application for asylum’ that are consistent with the INA,” according to the new rule.
There are exceptions to these new regulations about eligibility. For example, migrants can apply for deferral of removal under the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” The rule also makes exceptions for victims of human trafficking because they “do not volitionally transit through a third country to reach the United States,” and it also makes exceptions for people who transit through countries that do not recognize international treaties dealing with torture and the proper treatment of refugees.
The rule seeks to cut down on frivolous “credible fear” claims that keep aliens in the United States until their claims for asylum can be heard and ruled on.
“This rule does not change the credible-fear standard for asylum claims,” the document explains, “although the regulation would expand the scope of the inquiry in the process. An alien who is subject to the third-country-transit bar and nonetheless has entered the United States along the southern land border after the effective date of this rule creating the bar would be ineligible for asylum and would thus not be able to establish a ‘significant possibility . . . [of] eligibility for asylum'” under federal law.
Raising the regulatory bar for asylum claims would also help the administration cut down on the total processing time for the claims while sending a message to the rest of the world that America’s asylum policies are not a “get out of jail free” card for otherwise illegal immigration.
“This Rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum. The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border,” Attorney General William Barr said in a statement. “This Rule will decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States—while ensuring that no one is removed from the United States who is more likely than not to be tortured or persecuted on account of a protected ground.”
The rule is what’s known as an interim final rule and will go into effect quicker than a normal federal regulation, which typically takes 60 days after first publication. The rule will go into effect immediately on Tuesday morning.