On September 11, 2019, the Supreme Court ruled in favor of the application for stay presented
by the government, wherein the government had requested to stay the nationwide scope of the
preliminary injunction issued by the Federal District Court of San Francisco. This effectively
stayed the enforcement of the Joint Interim Final Rule promulgated by the Attorney General and
Secretary of Department of Homeland Security on July 16, 2019, which tries to limit the ability
of the individuals seeking asylum in the United States.
The promulgated rule in issue here:
(i) This rule mainly affects those individuals 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.”
Therefore, anyone trying to enter into the United States by land through the South
American countries or any other country, cannot apply for the asylum if they in the
first instance had failed to apply for asylum in at least one third country (where
protection from persecution or torture is available) through which they are
transiting into the United States.
(ii) According to the Department of Homeland Security, the promulgated rule will only
apply to the prospective asylum seekers on or after the effective date, which is July
16, 2019. Further, based on the promulgated rule, individuals who failed to seek
asylum or protection in the country en route to the United States, can continue to
apply for withholding of removal under the INA and deferral of removal.
(iii) The promulgated rule also issues specific guidelines for the law enforcement and
adjudicatory officers to take into consideration. This rule imposes a bar on the asylum
seeker at the time of the adjudication on the petition requesting for withholding of the
expedited removal of the individual.
Exceptions to the Promulgated Final Interim Rule:
(i) When an alien can establish the fact that the alien had applied for asylum in another
country, which the alien had visited en route to the US, and the third country denied
the application for asylum.
(ii) The alien satisfies that they are a victim of a severe form of trafficking in persons.
(iii) The alien transited to the US through the countries or a country that was or were not a
party to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
Effect of the Supreme Court Ruling:
After The Supreme Court ruling, the Interim Final Rule Promulgated by the DHS and DOJ on
July 16, 2019 has gone into enforcement. This brings a significant change in the long-standing
policy of the United States concerning asylum.
Now, the aliens will be subject to a new procedure for screening and review of any protection
claim. The scope of the inquiry will also expand. The new rule also provides for steps that the
authority needs to adopt in case of an alien who is subject to expedited removal proceedings (240
proceedings rule).
The Supreme Court Ruling will only remain effective until the issue is adequately
disposed of by the United States Court of Appeals for the Ninth Circuit and disposition of the
Government’s petition for a writ of certiorari, if such writ is sought.
For further information concerning the promulgated interim final rule and Supreme Court
ruling please listen to the discussion of the rule and the Supreme Court ruling
by Ms. Pallavi Ahluwalia, Managing Attorney of the Ahluwalia Law Offices, P.C. on News
Talk show hosted on KURV 710 radio (Link of for the radio show hosted on September 13,
2019, https://youtu.be/jDQgjvv1Mak )
DISCLAIMER
The information provided under this article is just a basic overview of the promulgated interim
final rule and The Supreme Court ruling relating to it. For, further case-specific information and
questions, please contact your appointed Attorney or the Ahluwalia Law Offices, P.C.
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