In a recent decision, the Supreme Court has allowed a new asylum regulation to go into effect, at least until questions about the legality of that regulation work their way through the court system. Until now, the rule had been on hold, thanks to an interim decision by a lower federal court. The regulation--colloquially known as Asylum Ban 2.0--bars certain people from asylum, depending on when and where they entered the United States. Whether the regulation will ultimately be upheld by the courts is not yet known, but obviously, the Supreme Court's decision does not bode well.

Here, we'll take a look at the effect of the new rule on asylum applicants and on "the system."

First, let's talk about who is blocked by the regulation. The rule applies only to people who arrive at "the southern land border" of the United States. So if you arrive in the U.S. at an airport or seaport, or if you arrive by boat or drop in by parachute at a place other than the southern land border, the rule does not apply to you. Even if you arrived at the southern land border, the regulation does not apply to you if you got here prior to July 16, 2019. Those who arrive at the U.S.-Mexico border on or after July 16, 2019 are affected.

If you are affected by the regulation, you are barred from asylum unless (1) you demonstrate that you applied for protection from persecution or torture in at least one country outside your country of citizenship, nationality, or last lawful habitual residence through which you transited en route to the United States, and that you received a final judgment denying your application for protection in such country; or (2) you demonstrate that you satisfy the definition of "victim of a severe form of trafficking in persons" provided in 8 C.F.R. § 214.11.

So the first exception requires the alien to seek protection in a third country en route to the U.S. It's worth noting that if you are seeking asylum from Mexico, the rule does not apply to you, since you have not passed through a third country. If you are from some other country, the only way to arrive at the southern land border is to pass through Mexico. Some people pass through dozens of countries to reach the U.S.-Mexico border; other people pass through only one country (Mexico). The regulation requires that you seek asylum in one of those countries; the regulation does not require you to seek asylum in more than one country.

In the preamble to the regulation, our government justifies its new policy by claiming that Mexico's asylum system is a "robust protection regime." This seems doubtful. Most reports indicate that the Mexican asylum system is overburdened and flawed. Moreover, the situation in Mexico is unsafe for many people trying to reach the U.S. Most other countries that asylum seekers might pass through are no better. And so the idea of barring asylum seekers simply because they did not seek asylum in a country that was unsafe for them and/or that does not have a functioning asylum system seems unfair (especially for those who did not know about the rule, which is effectively retroactive) and cruel.

What then do you do if the new rule applies to you? For people who are not yet here, my guess is that some of them will start seeking asylum in third countries and being denied. It seems to me that the rule will create a cottage industry where any Mexican or Central American official with a "no" stamp can issue a denial, and then the asylum applicant can use that denial to support a claim for asylum in the U.S. For people who arrive after July 16, 2019 and who have not tried to obtain asylum in a third country, there are still two main options--Withholding of Removal ("WOR") and relief under the UN Convention Against Torture ("CAT"). Both forms of relief are potentially available to people who fear persecution in their home countries, though they are both inferior in terms of benefits when compared to asylum. Also, the evidentiary burden for WOR and CAT is higher than the burden to obtain asylum. Nevertheless, WOR and CAT are forms of protection that remain available to asylum seekers, even if those who are blocked by the new regulation.

The second exception to Asylum Ban 2.0 applies to victims of human trafficking. The regulation defines trafficking victim as follows--

Severe form of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under the age of 18 years; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery

This is pretty broad and pretty vague. People who have been subject to sexual abuse or forced labor might meet this exception. Also, unlike the first requirement about seeking asylum in a third country, the regulation does not require that the trafficking took place "en route to the United States." Potentially then, if you were ever a victim of human trafficking, you might qualify for this exception to the asylum ban.

Asylum Ban 2.0 will undoubtedly make it more difficult for certain people to obtain protection in the United States. That is the whole point. But I have my doubts about whether the new rule will accomplish what the Trump Administration hopes to accomplish, which is to deter people from coming here to seek asylum. The new regulation does not block people from WOR or CAT, and so when they arrive at the border and ask for protection, they will still be accorded a credible or reasonable fear interview (which is an initial evaluation of eligibility for asylum, WOR, and CAT). While it may now be more difficult to "pass" such an interview, the difference in the burden of proof between asylum and the burden for WOR or CAT is fuzzy, and it seems to me that aliens who would have passed for purposes of asylum may very well also pass for purposes of WOR and CAT. Thus, asylum seekers will still be entering the system, and so the deterrent effect of the new rule will probably be less than what the Administration wants. Further, I just don't believe that people will be deterred from coming here by the Administration raising the bar a few notches. Look what is happening in the Mediterranean: Every year, thousands of migrants are killed trying to get to Europe, yet still they come. If people are not deterred by the real possibility of dying, it seems doubtful that they will be deterred by a higher legal hurdle.

In the end, I doubt that this new regulation will do much to alleviate the problem at the border or the backlogs in the Asylum and Immigration Court systems. However, it will hurt asylum seekers--by making it more difficult for them to get the protection they need and by encouraging those who arrive at the border to circumvent legal points of entry. The new regulation will also further erode morale among Asylum Officers and Immigration Judges, who simply want to follow the law. And finally, the new rule further degrades our country's role as a beacon of hope and freedom for persecuted people throughout the world.

Originally posted on the Asylumist: