Immigration Law

New asylum rule is quickly challenged in two lawsuits

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Updated: Two lawsuits filed Tuesday on behalf of immigrant aid organizations seek to block a new asylum rule that would prevent most immigrants at the southern border from applying for asylum.

The lawsuits contend the new policy contravenes congressional intent expressed in the Immigration and Nationality Act. They also assert that the rules were enacted without following required procedures in the Administrative Procedure Act. One of the suits, filed in Washington, D.C., federal court, also argues the rule violates the due process clause.

In a separate development, ABA President Bob Carlson said in a statement on Wednesday that the ABA “strongly opposes” the new policy.

Carlson said the rule changes “gut current asylum law” and “override the clear intent of Congress.” He also said the changes “abrogate our nation’s responsibility to protect asylum-seekers under international law.”

The D.C. lawsuit was filed with the pro bono help of Hogan Lovells, according to a press release. The second lawsuit was filed in San Francisco federal court by the American Civil Liberties Union, the Southern Poverty Law Center and the Center for Constitutional Rights, according to this press release.

The interim final rule unveiled Monday requires immigrants at the southern border to apply for asylum in at least one country they pass through on their way to the United States. The rule effectively ends asylum for any migrant at the southern border who isn’t from Mexico.

The rule makes an exception for victims of a “severe form of trafficking,” people denied asylum by other nations and people who arrive at the United States after traveling through a nation that isn’t a party to international treaties governing refugees.

“It is long-standing federal law that merely transiting through a third country is not a basis to categorically deny asylum to refugees who arrive at our shores,” the ACLU lawsuit says.

Both suits say Congress had made just two exceptions that permit denial of asylum based on a connection with a third country.

One exception allows denial of asylum to people who are “firmly resettled” in the third country. The second permits denial when the third country has a “safe third-country” agreement with the United States that gives asylum-seekers a safe opportunity to apply for asylum there. Currently, the United States has such an agreement with just one country, Canada.

The New York Times and the Washington Post have coverage of the ACLU lawsuit.

Plaintiffs in the ACLU suit are nonprofits that help asylum-seekers: the East Bay Sanctuary Covenant, Al Otro Lado, the Innovation Law Lab and the Central American Resource Center. Plaintiffs and co-counsel in the Hogan Lovells suit are two nonprofits that provide legal help for immigrants: the Capital Area Immigrants’ Rights Coalition and the Refugee and Immigrant Center for Education and Legal Services.

Story updated at 1:25 p.m. to include Carlson’s statement.

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