Third Country Asylum Rule Overturned

Last Tuesday, United States District Judge Timothy J. Kelly overturned the Third-Country Asylum Rule, one of the Trump Administration’s most severe asylum policies, ruling it illegal. Kelly, who was appointed to the court in 2017 by President Trump, claimed that the Third-Country Asylum Rule was “unlawfully promulgated” because it did not give a public notice or provide time for public comment, bypassing the Administrative Procedure Act (APA). Furthermore, the Administration failed to show how such a quick implementation was in the public interest.

The Third-Country Asylum Rule was issued in July 2019 so that aliens who sought asylum in the U.S. would have to apply for asylum in at least one country of transit on their way to the U.S. southwestern border. This policy has effectively barred many Central American migrants from obtaining asylum in the United States, forcing them to first seek asylum from Mexico.

In his 52-page opinion, Kelly argued that the Administration based this Third-Country Asylum Rule almost entirely on a single October 2018 newspaper article that insinuated that the proportion of asylum seekers with children increased after the Administration ended a policy of separating immigrant families at the U.S.-Mexico border. Kelly critiqued the Administration for not having complied with the APA’s notice-and-comment requirements after first issuing this rule, explaining that the broader a rule’s reach, the greater the necessity for public comment. He added that, “with these baseline principles in mind, the Court considers whether either the good cause or foreign affairs function exception applies here.

Note that while the decision will overturn the Third-Country Asylum Rule, this will likely not lead to an extreme increase in asylum claims because the Trump Administration has issued other policies that make immigration less accessible to aliens, including asylum seekers, that cite the COVID-19 pandemic and emergency health protections as justifications to restrict human movement that consequently prevent individuals from seeking protection. However, by striking down this rule, Judge Kelly reaffirms two fundamental principles, explains Claudia Cubas, the Litigation Director at CAIR Coalition, one of the plaintiffs in the lawsuit. Cubas added, “the protection of asylum seekers fleeing for a safety is intertwined with our national values and that the United States is a country where the rule of law cannot be tossed aside for political whims.”

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