On September 11, 2019, the Supreme Court granted a stay of a July 24, 2019 order by a district court granting a preliminary injunction and an order restoring the nation-wide scope of the injunction on Asylum Third Country Ban.
This move allows the Trump administration to ban at the U.S.-Mexico border, asylum seekers who have transited the third country, hence, Asylum Third Country Ban, without first seeking asylum in that third country. TheAsylum Third Country Ban, called Asylum Ban 2.0, is in effect across the nation. This ruling is not final; it is applicable only to the preliminary injunction, and not the case which is in litigation in the U.S. Court of Appeals for the Ninth Circuit.
Persons who traveled through Mexico or other countries and did not seek asylum in such country, and then arrived at the U.S. border seeking asylum on or after July 16, 2019, and whose asylum applications are pending after September 11, 2019, are barred from filing asylum application in the US.
The ban does not affect Mexicans since they do not need to transit through a different country to reach the US. Further exceptions to the ban are those who applied for Asylum but failed to obtain asylum in a transit country and those who are victims of a “severe form of trafficking in persons”.Unaccompanied children also fall under the purview of this ban. Individuals seeking asylum who entered at ports of entry via the US-Mexico border before the effective date of the ban – July 16, 2019, need to be ready to prove they were in the U.S. before July 16, 2019, otherwise, the Asylum Third Country Ban will apply to them.
Going forward, asylum-seekers will find it difficult to obtain protection in the US. Persons who can prove that they will be physically harmed if they are turned away from the US may still be eligible to apply for ‘withholding of removal’ or seek relief under the Convention Against Torture (CAT). However, the burden of proof is higher and not as beneficial as an asylum.
Withholding of removal or Convention against Torture (CAT) protection are not permanent forms of relief, they require applicants to meet a higher burden of proof, and do not provide any benefits to derivative family members. Immigration judges and asylum officers will have to apply the new Asylum Third Country Banon eligibility for asylum when they administer the credible-fear Interview process where applicable.
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