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23 tweets,
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But not to be undone, Trump Admin just published an interim final rule prohibiting a grant of asylum to anyone who enters or attempt to enters at So Border but failed to seek asylum in a 3rd country outside the through which he transited en route to the US. SH*TSTORM!
1/ Anticipating major litigation, the Admin makes sure that the new 'Third Country"rule will apply only prospectively -- meaning only to those who apply for asylum after the rule comes into effect. 30 days comment period then will see. So nothing imminent.
2/ The rule is devised so that it will apply not only during adjudication in sec 240 proceedings but also at credible fear screening, thus during 235b expedited process. If implemented, this will drastically reduce positive credib fear; 235b removal will skyrocket.
3/According to the Interim Rule our of the currently 900K cases pending before the EOIR more than 436,000 include an asylum application. Intended as a proof of huge number it is actually not, considering that asylum & cancellation are the 2 reliefs available.
4/ The Proposed 3rd Country Rule is trying to exploit the fact that asylum is discretionary in nature, meaning that even if one satisfies the definition of 'refugee', a grant is in the discretion of the AG and its delegates (i.e IJs, BIA, etc).
5/ But discretion in the asylum adjud process is not unfettered: it is guided by established principles & guideposts derived from prior precedental decisions. So, IJ cant just say "denied in exercise of discretion". Well, I should say they are not supposed to, & genetally dont.
6/ Now the INA contains several mandatory bars to asylum: (1) persecutor of others; (2) particularly serious crime; (3) firm resettlement in another country; (4) national security danger; (5) terrorist activities.
7/ None of those are implicated here, rather Trump Admin is trying to capitalize on another IIRARA (law passed in 1996) special evil the procedural bars, prohibiting asylum because of (1) failure to apply for asylum within 1 year of entry; (2) applied but denied; ....
8/ ... & the one Trump is exploiting which prohibit grant of asylum if an applicant can be removed to "a safe third country pursuant to a bilateral or multilateral agreement". Congress cabined this bar to "safe" third countries & only pursuant to intl agmts. NOT unilateral action
9/ What this new abomination builds on is language in 1158 that AG could
“establish adnl limitations & conditions, consistent w [sec 208 of the INA], under which an alien shall be ineligible for asylum under para (1).” Meaning a broad delegation that can be filled by regulations
“establish adnl limitations & conditions, consistent w [sec 208 of the INA], under which an alien shall be ineligible for asylum under para (1).” Meaning a broad delegation that can be filled by regulations
10/ They actually cite to Matter of B-R-, a 2013 BIA decision by pointing our that BIA held that in light of asylum law’s “core regulatory purpose,” several provisions of the Act “limit an alien’s ability to claim asylum in the US when other safe options are available”.
11/ So bottom line is that Barr is eliminating the need for an bilateral agreement designating "safe' 3rd country and does not even mention "safe" country of transition -- just points to MX "robust legal protection" ?1? WTF, you say? Joint he party.
12/ The interim rule makes clear that withholding of removal & CAT remains and are not affected. But those require ppl to prove "more likely than not" persecution or torture, and let me tell you this is a very high threshold to meet.
14/ There are few limited exceptions: applicant must prove (1) is a victim of severe form of trafficing; (2) applied in third country but was denied (final decision) and (3) transited only tru countries not party to Refugee Convention.
15/ So looks like that Admin is gunning for ppl making it to Cuba and then try to reach US by sea or just trying to make it only by sea. This is just unconscionable and a knowingly placing ppl in harms way.
16/ the changes to the 235b screening for credible fear are staggering. So, once third country-transit bar is raised, the person will not longer be screened for credible fear on the merits but will be screened for "reasonable fear" for 241 and CAT purposes. So basically, they ...
17/ ... are trying to modify the credible fear standard which the Admin is seeing as too lenient into "a more likely than not" standard by placing a completely arbitrary rule of passage through another country, regardless of the condition in said country. NOT LEGAL.
18/ to preempt a court injunction 'third-country transit' rule emphases that both the bar, denial of credib fear & negative reasonable fear determination will be subject to de novo review by IJ, as it is now. Well, this dosnt take into account that the "bar" itself is not legal
19/ two gems buried into this crap: First, even if ppl establish that they have been victims of severe form of trafficking (so can go forward w asylum claim), this finding will not be binding on DHS w respect to a grant of T or U non-immigrant status.
20/ and then there is THIS: "This rule does not provide for a categorical exception for unaccompanied alien children (“UAC”), as defined in 6
U.S.C. 279(g)(2)" even though children are statutory exempted from the "safe third country' bar!!!
U.S.C. 279(g)(2)" even though children are statutory exempted from the "safe third country' bar!!!
21/ If you are feeling sick and want to puke, well you will be joining a lot of people who like me are just apoplectic about what this Administration is doing.
22/ It is one thing 4 IJs/TAs to try to undermine valid claims by peppering applics w Qs why they did not apply in a transit country, they have been doing that for years. But it is quite another thing to create a mandatory bar to asylum just coz you do not like who is applying.
23/ So it is Monday, barely after 8 ... ok! Barr, what you have next for us?
