THE ASYLUM BAN –ASYLUM THIRD COUNTRY TRANSIT BAR went into effect on July 16, 2019. The Department of Justice and the Department of Homeland Security are adopting the third-country transit asylum bar, which bans asylum seekers at the southern border if they transited through a third country en route to the United States and did not apply for asylum in one of those countries. There is currently pending litigation and a final decision has yet to be made. However, the United States Supreme Court ruled in favor of the administration and has allowed the ban to continue while the lawsuit is pending.
The new Rule applies to people, including children, who enter or arrive in the United States on or after July 16, 2019. The rule requires asylum officers and immigration judges to apply this new bar on asylum eligibility when administering the credible-fear screening process and in removal proceedings to people who are subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act. The new bar does not modify withholding or deferral of removal proceedings or relief under UN Convention (CAT – Convention Against Torture).
There are three limited exceptions to the bar. (1) People that applied for but were denied asylum in a country of transit; (2) are victims of severe forms of trafficking; or (3) did not pass through any country that is a signatory to the Refugee Convention, Refugee Protocol, or CAT. Because Mexico is a party to the Refugee Convention and CAT, in effect, only those asylum seekers who meet the first or second exceptions would be eligible for asylum in the United States. This means that people may still fight their case in court and will be given the opportunity to present their case for withholding of removal or CAT.
One of the biggest differences is between a grant of asylum and withholding or deferral that a person granted asylum is ultimately eligible to file for Lawful Permanent residency. A person granted withholding of removal is not. A person granted withholding will be allowed to remain in the United States but the government still retains the right to deport this person should conditions in the person’s country change for the better.
Currently, the ban is being implemented and the first cases are starting to come through the court system. A person should not give up because of the ban but rather work with an attorney that will help them understand and prepare their case in the best way possible. At Wilner & O’Reilly, we understand the complexities of the immigration laws and their consequences on families and individuals. We are experienced and are here to help. We offer free, in-person consultations at our offices in Orange, Fresno, Riverside, Sacramento, and San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
ABOUT THE AUTHOR(S)
SULLY T. BRYAN – MANAGING ATTORNEY – FRESNO
Sully Bryan is the Managing Attorney at the Fresno Office of Wilner & O’Reilly. Ms. Bryan currently focuses on family-based immigration, U-Visas, 601 Waivers, VAWA, and removal defense. Ms. Bryan received her Juris Doctor from Brigham Young University, J. Reuben Clark Law School. During her time in law school, she served on the board of Moot Court, The Minority Law Students Association, Student Bar Association, and the Latin American Law Student Association. She also participated in the Immigration Law Forum and Women in the Law. In 2014, Sully received the Cora Snow Carleton Award; an award that is given to an outstanding female student at the law school. Born and raised in Southern California, she is the proud daughter of two immigrants, and the first person in her family to have attended college.
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.