Factsheet on the November 9, 2018 Asylum Ban

Last Updated

December 7, 2018

Is the Asylum Ban currently in effect?

No, a federal judge has temporarily prevented the government from implementing the Asylum Ban. The ACLU, the Southern Poverty Law Center and the Center for Constitutional Rights filed a request for an injunction in the Northern California District Court in the case of East Bay Sanctuary Covenant v. Trump.  The district court granted a temporary restraining order on November 20, 2018.  This ruling temporarily enjoins (or stops) the government from enforcing the Asylum Ban, temporarily, until December 19, 2018 when the court will decide whether to issue a preliminary injunction. 

Further, on November 20, 2018 Human Rights First and National Immigrant Justice Center filed a lawsuit in federal court in the District of Columbia challenging the Asylum Ban.  Plaintiffs in the case, O.A. v. Trump, are six asylum seekers, including three children, who were illegally barred from applying for asylum because they did not enter the U.S. at an official border entry point. The D.C. federal court will hold a hearing on December 17, 2018 in order to decide whether to issue a TRO. For more updates check here.


The questions and answers below discuss what the Asylum Ban will do if the judge does not extend the injunction or if the government appeals the injunction and the district court order is lifted.


What is the Asylum Ban?

On November 8, 2018 the Department of Homeland Security (DHS) and Department of Justice (DOJ) released an Interim Final Rule entitled Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims.  The next day, on November 9, 2018 the President issue a Proclamation Addressing Mass Migration Through the Southern Border of the United States.  Both the Interim Final Rule and the Proclamation seek to limit access to asylum for persons who enter the United States between ports of entry (without inspection) at the southern border. 

Both agencies issued their own internal policy memoranda on November 9, 2018.   DHS’s  United States Citizenship and Immigration Service (USCIS) issued Procedural Guidance for implementing these regulatory changes (USCIS Guidance) and DOJ’s Executive Office for Immigration Review (EOIR) issued Guidelines Regarding New Regulations governing Asylum and Protection Claims.


Which part of the law has changed?

The Interim Final Rule makes changes to the asylum regulations codified at 8 C.F.R §208 (DHS Regulations) and 8 C.F.R. §1208 & §1003.42 (EOIR Regulations).  The amendments are found at 8 C.F.R. §208.13(c)(3) & §1203.13(c)(3) (additional limitation on eligibility for asylum – “asylum bar"), §208.30(e)(5) (negative credible fear for those subjected to the proclamation), §1203.13(e)(5) (review of a negative reasonable fear finding for those bared from asylum pursuant to the new rule) and §1003.42(d) (Review of the credible fear determination by the immigration judge (IJ)).


Who is affected by the proclamation and regulations?

These changes affect individuals who enter the United States by crossing the southern border between ports of entry after November 9, 2018 who intend to seek asylum.


What do the changes involve?

Anyone who enters the United States between ports of entry (enters without inspection) rather than presenting him or herself at a port of entry will be barred from seeking asylum in the United States. Those who seek to enter at ports of entry without entry documents will be subject to the same procedure that is already in place.


What happens if someone presents him or herself at a port of entry without proper entry documents?

The Proclamation and Regulations do not change existing procedures for those who present themselves at ports of entry. If the individual expresses a fear of return to his or her home country, the individual will be detained by DHS and will be subject to a credible fear interview (CFI) by a USCIS asylum officer. If the individual can show a “significant possibility” of winning an asylum claim, he or she is placed into INA § 240 removal proceedings before an immigration judge where he or she can pursue asylum, withholding of removal and CAT. If the asylum officer does not find a credible fear of persecution, the individual has a right to have that decision reviewed by an immigration judge. If the immigration judge does find a credible fear, the asylum seeker is placed in removal proceedings to pursue asylum; if the judge does not find a credible fear, the asylum seeker is removed from the United States.


What happens under the Asylum Ban to asylum seekers who enter between ports of entry (enters without inspection) and is placed in expedited removal?

An asylum seeker apprehended between ports of entry would no longer be eligible to receive asylum under the changes in the law.  If the person entered between checkpoints and is apprehended near the border, and placed into expedited removal, He or she would be taken into DHS custody.  As per the USCIS Guidance an asylum officer would first determine if 8 CFR §208.13(c)(3), applies and if it does the officer would enter a negative credible fear determination. After entering the negative for credible fear determination, the officer will conduct a reasonable fear interview.  If the asylum seeker shows a reasonable fear of persecution or torture—a standard that is significantly more difficult to meet than the credible fear standard—than he or she would be placed into INA §240 removal proceedings but would be barred from seeking asylum. He or she could seek withholding of removal under INA § 241(b)(3) or protection under the Convention against Torture (CAT), but not asylum.


What happens to people who enter the US without inspection (between ports of entry) on or after November 9, 2018 and later apply for asylum affirmatively?

Based on a reading of the interim final rule, it appears that even persons who enter on or after November 9, 2018 and later apply for asylum affirmatively will be given a Notice to Appear (NTA) and placed in removal proceedings pursuant to INA §240.  However, this scenario is not addressed in the USCIS guidance.  Since such individuals would not be in expedited removal, they would not have to pass an RFI to be placed into removal proceedings. Once in removal proceedings, they will be able to apply for withholding of removal and CAT protection.  They will not be able to apply for asylum.


What happens to people who enter the United States without inspection and who later are placed in removal proceedings but who have entered the United States on or after November 9, 2018 and who apply for asylum?

According to the change in regulation, these people would not be eligible for asylum, and can only apply for withholding of removal and CAT while in removal proceedings.   The Interim Final Rule states:

Thus, an alien encountered in the interior of the United States who entered in contravention of a proclamation and who is not otherwise amenable to expedited removal would be placed in proceedings under section 240 of the INA. The interim rule does not invite comment on existing regulations implementing the present scope of expedited removal.

See Section IV(B)(1) Page 32 of the Interim Final Rule.

We interpret this to mean that the rule applies to everyone regardless of whether they are subjected to expedited removal.


What is the difference between being eligible for asylum or withholding of removal and CAT protection?

Both withholding and CAT protection require an applicant to meet a higher legal standard than asylum and neither provides relief that is as secure. To win a claim for asylum an applicant must show that he or she has a well-founded fear of persecution. This standard has been interpreted by the United States Supreme Court to mean a 10% likelihood of persecution. By way of contrast, to succeed in a claim for withholding of removal or CAT protection, an applicant must show that it is more likely than not that he or she will be persecuted or tortured, a standard that is greater than 50%. Under the changes to the rule, an individual could demonstrate a 49% likelihood of persecution or torture and still be returned to the country he or she fled.


What is the difference between winning asylum versus winning withholding of removal or CAT protection?

Asylees can apply for lawful permanent residence one year after being granted asylum, and can apply for citizenship four years after being granted lawful permanent residence status. They travel abroad with a refugee travel document, and can sponsor spouses and minor children for derivative asylum benefits. By way of contrast, prior to granting withholding of removal or CAT protection, an immigration judge must enter a final order of removal against the applicant. This means that an individual who has won withholding or CAT is not on a path to lawful permanent residence or citizenship, cannot travel outside the United States, and cannot apply for derivative status for family members.  Prevailing on a claim for withholding or CAT often means permanent separation from family members abroad. Furthermore, if the United States can prove that conditions have changed in the home country, the status can be revoked.  The relief is much more limited.


Are these changes legal?

The Immigration and Nationality Act (INA) § 208(1), states “[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  .  .  .”)  The regulations and proclamation invoke a general section of the INA, § 212(f) which grants the president authority to impose restrictions on entrants into the United States if he deems their entry detrimental to the United States. This is the same section of the law he invoked in issuing the so-called Muslim ban. There has already been a lawsuit filed seeking an injunction to prevent the changes from going into effect.


Why did the regulations go into effect immediately?

Normally, the Administrative Procedures Act (APA) requires the government to issue proposed regulations, allow the public to comment, review the comments, and then issue a final rule. The government has claimed an exception to the ordinary APA requirements, called the “good cause", because it states that if they issue proposed rules, many migrants would attempt to reach the United States before the rules go into effect. The government also claims an exception because the rule implicates foreign policy.


Why would an asylum seeker enter between ports of entry instead of at a port of entry?

Over the past year there have been many reports issued of DHS officials turning asylum seekers away at ports of entry.  Since the announcement of the Asylum Ban, many asylum seekers have been put on waiting lists to be processed through ports of entry lawfully which will require them to wait in Mexico for weeks or longer. Many ports of entry are in dangerous locations in Mexico and those waiting on line may be preyed upon by criminals there. For many asylum seekers coming to the US from Central America, some of the worst harm they suffer is from coyotes, cartels or other groups who harm them as they pass through Mexico.  Mexico is not safe for them and they cannot wait to be processed so they come to the United States between the border check points to save their lives. Clearly, Congress contemplated this scenario because the INA allows for those who enter between border checkpoints to apply for asylum. 


What is the justification for this change in rules?

The government claims that the southern border is being overwhelmed. In fact, irregular border crossings were much higher twenty years ago than they are today and U.S. Border Protection has more than double the number of officers now than twenty years ago. While the government claims that these changes are needed to preserve resources, it also admits that in the past it has taken asylum officers longer to conduct reasonable fear interviews than credible fear interviews.  The government acknowledges that in fiscal year 2018 the RFI grant rate has been 45%, with a reversal by IJs in 18%, meaning 63% of migrants pass reasonable fear as opposed to 89% who passed credible fear. The government also states in the introduction to its regulations that under the new rules, it is likely that more people will pass RFIs than previously, so the number of individuals who are placed in removal proceedings may not go down dramatically. These numbers reinforce the fact that the proclamation and regulations are intended to be punitive and to deter asylum seekers from coming to the United States.


How does this new rule affect Unaccompanied Minors (UCs)?

According to USCIS Guidance, the Proclamation renders UCs who cross the border between ports of entry on or after November 9, 2018 will also be barred from seeking asylum.  There is no exception in this rule for unaccompanied minors.


Does the Asylum Ban alter who is placed in expedited removal?

No, the Interim Final Rule and the USCIS guidance are clear that the current expedited removal rules have not changed.  Therefore only those who are caught in the US within 100 miles from the border and within 14 days will only be placed in expedited removal pursuant to Designating Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004).


Has there been a deal reached between Mexico and the U.S. regarding asylum seekers?

As reported in the Huffington Post, the Trump administration is reportedly negotiating with the Mexican government to force asylum-seekers to remain in Mexico while their asylum cases are pending in the U.S. However, such action would likely be subject to further legal challenges.


This FAQ is current as of December 6, 2018. Please visit CLINIC’s webpage for more up to date information on the Asylum Ban.2018