Greenspoon Marder Immigration Client Alert: Breaking News Regarding Asylum Procedures At Non-Designated Port of Entry and the Ninth Circuit Upholds Injunction Requiring Department of Homeland Security to Accept DACA Renewals

Immigration Blog Nov 10, 2018

President Donald Trump issued an executive order that would bar asylum seekers crossing the U.S.-Mexico border from submitting asylum claims if they do not present themselves at a designated port of entry. The restriction does not apply to unaccompanied immigrant children. It also does not apply to asylum seekers seeking withholding of removal and relief under the Convention Against Torture. Asylum seekers can present those claims even though they do not present themselves at a designated port of entry.

The order is initially effective for 90 days, with the subsequent possibility of renewal.

The interim rule changes asylum procedures . The executive order was issued pursuant to 212(f) of the Immigration and Nationality Act — which holds that the president may suspend entry of any “class of aliens” into the U.S. by proclamation for as long as necessary if he found they “would be detrimental to the interests of the United States.” The rule also cites the authority of 215(a)(1) of the INA, which subjects foreign citizens entering or departing the U.S. to “limitations and exceptions” prescribed by the president. As you may recall, 212(f) of the INA was the provision applied to the “travel ban”.

Under the rule, asylum seekers who are subject to this rule will be barred from asylum and be given a negative credible fear determination and will be subject to the reasonable fear screening stage to determine eligibility for CAT protection or a withholding. Those who clear the reasonable fear standard will get a hearing before an immigration judge, where they can make their case for CAT or withholding, as well as contest the finding that they are subject to the asylum bar.

Today, the Ninth Circuit Court of Appeals upheld a nationwide injunction requiring the Department of Homeland Security (DHS) to continue to accept Deferred Action for Childhood Arrivals (DACA) application renewals while a lawsuit challenging the Trump Administration’s termination of DACA continues. In the first Court of Appeals ruling on the DACA program, the Ninth Circuit found that the lower federal court did not abuse its discretion in issuing a nationwide injunction against the program’s termination, and that plaintiffs are likely to succeed in demonstrating that DHS’s rescission of DACA is unlawful. Notably, in affirming the lower court ruling, the Ninth Circuit expressed its belief that the creation of the DACA program itself was lawful, stating “DACA was a permissible exercise of executive discretion.” The case is Regents of the University of California et al. v USDHS. DHS is expected to appeal the decision to the U.S. Supreme Court.

Greenspoon Marder will continue to monitor the situation.

About Greenspoon Marder

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Greenspoon Marder Immigration Client Alert: Breaking News Regarding Asylum Procedures At Non-Designated Port of Entry and the Ninth Circuit Upholds Injunction Requiring Department of Homeland Security to Accept DACA Renewals

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