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DHS and DOJ issue joint third country asylum final rule

  1. Date Announced

    Dec. 17, 2020

    DOJ (EOIR) and DHS (USCIS) issue a final rule establishing a mandatory bar to asylum eligibility for individuals who transit through a third country and then enter or attempt to enter the U.S. across the southern border without having applied for protection in at least one of the third countries through which they transited. The Departments previously issued an IFR with request for comment on July 16, 2019, 84 FR 33829. The final rule makes minor technical and typographic changes to the IFR and is effective on January 19, 2021.

    The IFR was signed by Acting Secretary McAleenan and AG Barr.

    The final rule was signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel for DHS, on behalf of Acting Secretary Wolf, and James McHenry, EOIR Director.

    [ID #83]

    View Policy Document
  2. Effective Date of Change

    Jan. 19, 2021
  3. Subsequent Action

    June 30, 2020

    On June 30, 2020, D.D.C. vacated the IFR on APA procedural grounds. The government has appealed the district court's order. The cases (consolidated) are CAIR Coalition v. Trump & I.A. v. Barr, D.D.C. Nos. 19-cv-2117 & 19-cv-2530.

    Notably, the district court did not issue an injunction, and the IFR has now been superseded by a final rule, effective on 1/19/21. Accordingly, while the rule remains vacated and unenforceable until 1/19, the restrictions will take effect unless a new lawsuit is filed/injunction issued.

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

  4. Subsequent Action

    July 6, 2020

    On July 6, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction in East Bay Sanctuary Covenant v. Barr against the third country asylum rule announced in July 2019 by the Department of Homeland Security (DHS). However, on September 11, 2020, the Supreme Court stayed the injunction pending appeal. The government's petition for rehearing en banc was filed on October 5, 2020 and is currently pending at the Ninth Circuit as of 12/21/20.

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

    East Bay Sanctuary Covenant v. Barr, IM-CA-0146. Docket Court, 4-19-cv-04073 ( N.D. Cal. )
  5. Subsequent Action

    February 16, 2021

    On Feb. 16, 2021, the Northern District of California issued a preliminary injunction blocking the rule from going into effect, reasoning that this rule was effectively identical to previous iterations of the rule that had already been ruled unlawful by the Ninth Circuit. See East Bay Sanctuary Covenant et al. v. Barr et al., 19-cv-04073 (N.D. Cal. 2021).

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

    East Bay Sanctuary Covenant v. Barr: N.D. Cal. Prelim. Injunction
Type of Action: Rule
Agencies Affected: CBP ICE USCIS EOIR

Prior Policies

  • Section 208(2)(A) established an exception to asylum and allowed return to a "safe third country" only if: "the alien's life or freedom would not be threatened" and "the alien would have a full and fair procedure for determining a claim to asylum or equivalent temporary protection." The United States and Canada signed a Safe Third Country Agreement on December 5, 2002, based on mutual acknowledgement of the international legal obligations of the Parties under the principle of non-refoulement set forth in the Convention and Protocol and recognition that both countries offer generous systems of refugee protection, recalling both countries’ traditions of assistance to refugees and displaced persons abroad.

    Safe Third Country Agreement between United States and Canada

Subsequent Actions

Other Documents

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