Blocking those Seeking Entry PolicyFinal
Joint Rule and Presidential Proclamation On Entry and Asylum: What You Need To Know
Updated November 9, 2018
What are these new policies?
On November 9, 2018, the Department of Homeland Security (DHS) and Department of Justice (DOJ) issued an interim final rule and a presidential proclamation affecting individuals seeking entry at the southern border of the United States. These executive actions place restrictions on asylum for certain noncitizens arriving in the United States.
What are these policies intended to do?
The interim final rule governs eligibility for asylum and screening procedures for those subject to a new presidential proclamation. Together, these executive actions suspend entry for noncitizens crossing the southern border and bar such noncitizens from asylum.
What is the scope of the joint interim rule and presidential proclamation?
The rule applies prospectively, so individuals who arrived in the United States before the effective date of November 9, 2018 are not covered. The rule also does not impact two related forms of relief known as withholding of removal and protection under the Convention Against Torture. These forms of relief are narrower and without the same benefits of asylum protection. No later than 90 days from the date of the presidential proclamation, November 9, 2018, the Secretary of State, Attorney General and Secretary of Homeland Security should submit to the President a
recommendation on whether the suspension should be extended or renewed.
What legal authority is the administration relying upon to issue the interim final and
presidential proclamation?
The joint interim rule points to several sections in the immigration statute known as the Immigration and Nationality Act (INA). Some of these sections are summarized below.
● INA § 212(f) states: “Whenever the President finds that the entry of any aliens or of anyclass of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
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● INA § 208(d)(5)(B)● INA §
●Has the administration used INA § 212(f) before?
Yes. Most recently, INA § 212(f) was used as a basis for three travel bans issued by the President, each of which prohibits the entry of nationals from certain countries. On June 26, 2018, the Supreme Court of the United States issued an opinion in the case of Hawaii v. Trump (Travel Ban 3.0). Writing for the majority, Chief Justice Roberts held that the travel ban does not violate the INA and described INA § 212(f) as a “comprehensive delegation” which “exudes deference to the President in every clause.”
Is the President’s use of INA § 212(f) in the Travel Ban distinguishable?
Yes. In Hawaii v. Trump, the courts did not analyze the suspension clause at INA § 212(f) against the asylum provision at INA § 208(a).
What are the legal concerns with these executive actions?
There is a concern that the executive actions violate the immigration statute and other laws. While the interim final rule and presidential proclamation identify some sections of the immigration statute, these sections cannot be read in isolation to the statute as a whole, nor can it conflict with the U.S. Constitution, statutes and other laws. One concern is that these actions violate the statutory provision that governs asylum law and other laws. INA § 208 states that any person physically present in the United States, regardless of how or where he or she entered is eligible to apply for asylum. The section states in part, “
ated port of arrival.
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
states that “[t]he Attorney General may provide by regulation for any
other conditions or limitations on the consideration of an application for asylum not
inconsistent with this Act.”
215(a) states that it is “unlawful . . . for any alien to depart from or enter or attempt
to depart from or enter the United States except under such reasonable rules, regulations,and orders, and subject to such limitations and exceptions as the President may prescribe.”
INA
§
208(b)(2)(C) states that the “Attorney General may by regulation establish
additional limitations and conditions, consistent with this section, under which an alien
shall be ineligible for asylum under paragraph (1).”
Any alien . . . 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 . . .” (emphasis added).
Because
the plain language of the INA is clear that
any noncitizen is eligible for asylum regardless of her manner of entry, there is a concern that these policies violate the statute by restricting the availability of asylum seekers only to those who
present at a design
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Why is the administration issuing these policies?
It is the administration’s position that the United States has seen an increase in the number of noncitizens arriving at the United States between ports of entry along the southern border and that
many of the asylum claims brought forth by this population are without merit.
What are some of the countervailing views to the administration’s position taken by some
refugee advocates and scholars?
Many asylum seekers arriving at the southern border are from the Northern Triangle which is comprised of Guatemala, El Salvador and Honduras. The violence and danger in these countries is well documented. Individuals who have suffered or will suffer individual harm for a specific
reason are eligible to apply for asylum under the immigration statute and other laws. Many of the
asylum claims by individuals from the Northern Triangle are with merit.
What is an “Interim Final Rule”?
An Interim Final Rule becomes effective immediately upon publication and is an exception to the general rule that public notice and comment must take place before the effective date of a regulation. DOJ and DHS have concluded that a “good cause” exception exists to publish this asylum regulation as an interim final rule. Written comments can be submitted by the public for a period of sixty days from the date of publication.
What is a presidential proclamation?
A presidential proclamation is one form of presidential power and similar to an executive order. It is an order issued by the President of the United States and may possess the authority of law. See e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
What comes next?
Given the legal concerns of restricting asylum, litigation is expected. Further, under section 4 of the presidential proclamation, if any section of the proclamation is found to be invalid, the remainder of the proclamation shall remain effective.
Where can I find more resources?
See the Penn State Law Center for Immigrants’ Rights Clinic website for updates on this and other immigration policies. Also visit:
- ● Department of Homeland Security
- ● American Immigration Lawyers Association
- ● American Immigration Council
- ● Human Rights FirstThe goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
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