The Donald Trump administration just issued a joint interim final rule that adds a new bar to eligibility for asylum for an alien who:

"[E]nters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States."

The bar is subject to three exceptions:
  1. The alien applied for protection from persecution or torture in at least one of the countries he passed through en route to the United States, and his application was denied;
  2. He can establish that he is a “victim of a severe form of trafficking in persons;” or,
  3. He only traveled through countries that are not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture.
The objective of the new rule is to decrease the number of people crossing the border for economic reasons or to exploit the asylum system as a way to enter the United States. It won't do either.

First, asylum is not the only relief available to aliens who fear persecution — there’s also “withholding of deportation.”

The United States is a signatory to the UN's Convention and Protocol Relating to the Status of Refugees, which means that it cannot return or expel "a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

The United States satisfies this treaty obligation with Section 241(b)(3) of the Immigration and Nationality Act, which prohibits the removal of an alien to a country where his life or freedom would be threatened on those accounts.


Published initially on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1