Trump To End Asylum Protections in Latest Crackdown

The President's new move reverses the decades old approach on asylum that the US has had, and the new policy is sure to attract legal challenges. Joining me is Leon Fresco Apartment at Holland and Knight Leon, who will be prohibited from seeking asylum under this new rule published in

the Federal Register. Well. Under the new rule, it appears that anybody who enters the United States and did so by by by traveling and around via a third country, if they did not seek asylum in that third country and were denied or were not able to seek asylum based on some very compelling factor, all of those individuals will be denied. So basically, anybody who crossed through the Mexican border that's not Mexican will basically be barred from

obtaining asylum if this regulation is allowed to persist. So US law allows refugees to request asylum when they arrive at the US, regardless of how they got there. But there is an exception for those who have come through a country considered to be quote safe. So does this new rule fit within that exception? So interestingly, that's not the exception that cited in the making of the rule.

The rule does not claim that these third countries are safe third countries because the safe third Country provision makes it clear that what it says is is that you can be removed to a country where there is an agreement, and we don't have agreements with these countries, so there's

not a removal. What they're using instead is a different exception that exists in that same statute, which says, quote unquote, the Attorney General may by regulation establish additional limitations and conditions consistent with this section under which an alien shall be ineligible for asylum. And so what they're saying is because the statute allows additional limitations and conditions, they're just going to add one called you pass through a third country.

And the question is what part of the statute is going to be viewed as more compelling, this part that says you can add factors, or the part that specifically discusses third countries and says you have to have an agreement before you can cancel someone out because of a third country. And so that's going to be the debate in the court. So the a c l U has said that this rule is patently unlawful and will sue swiftly in the courts. Which argument do you think would

win the day? Well, I think both sides can be at least comfortable that they have an argument that one judge or another would agree. I don't think either side

has a slam dunk argument. I think if I was just fifty fifty had to make a choice at gunpoint, I would say that probably the fact that the Congress created a statute that described how third country UH disqualification would occur means that you can't then create a new third country disqualification that's inconsistent with the third country disqualification of Congress. You could create other factors that disqualified an

asylum seeker. So, for instance, let's say you became a hacker, and hacking wasn't contemplated in so you could say any asylum seeker who was a hacker won't get asylum. Okay, that's the kind of thing they were thinking about. But when Congress actually described the criteria for a third country and didn't list this criteria, the argument is probably going to come out that it's inconsistent with what Congress wanted.

So this is going to end up in the courts, where many of the administration's recent attempts to stop border crossings have failed. But the administration just got a rare win in a sanctuary city case at the Ninth Circuit Court of Appeals, which President Trump has repeatedly complained about.

Tell us about that. Well. So this case is interesting because it wasn't like the other sanctuary city cases where the Department of Justice has said, if you don't enforce immigration law, we're not giving you any federal grant funding. This case was a little bit trickier because what it did was there was a point system that every city could apply with in order to get federal funding for police officers, and it gave extra points for or the issue of whether a city was allowing ICE to get

criminal detainees out of its jails. And so Los Angeles didn't want to get those extra points because it didn't want ICE to have access to its jails. And so it suited and it said you shouldn't give extra points to anyone because this this due condition wasn't created by Congress. If Congress wanted that, it would have created this condition. And the courts disagreed to to one and said, yes,

Congress didn't create that condition. But Congress basically gave a blank check to the Department of Justice to create any point system it wanted, and so it could add this factor if it wanted to, as long as it wasn't a factor that was so unreasonable that it violated the Constitution. So that's in the Ninth Circuit. Do do cities that are in, for example, the Second Circuit have to listen

to that? Well, no, exactly. This is being challenged all over the country and it has been barred in the third circuits, Second Circuit, and this is probably there's probably gonna be what's called on bank review in the Ninth Circuit where the individuals who piled this lawsuit, the City of Los Angeles will probably seek an eleven judge panel to review the decision of the three judge panel and see if they can overturn it. And so most likely this case ends up in the Supreme Court at some point.

But the stakes are not as high as a pure ban on grant funding. This is just can you get preference on grant funding? And so this is why I think the Ninth Circuit had a little bit more sympathy for it. Also, let's just return for a moment to the asylum questions. The Trump administration says that, you know, the changes are meant to close the gap between that initial asylum screening, which is called the credible fear interview,

and the final decision on asylum. To the vast majority of immigrants claim they have a credible fear of returning home, and just that is that usually affirmed, right, So what happens is this, if you're applying for asylum when you can't when you enter the United States, then you you first survive and get to stay until your claim is heard.

If you can survive what's called the credible fear standard, which has about a nine success rate, because you basically have to show that there's a significant possibility that you have a reasonable fear of removal, and the people view that as like that you have a one or two percent chance of success, and that gives you enough to

to move on. But if you're not eligible for asylum, then the only way you can stay is if you get something called withholding of removal, which then is a much harder standard to prove, and you basically have to show that you have a fifty percent chance of being persecuted if you return home, and so that gets granted at a much much lower rate. And so that's what

the White House is trying to accomplish. And you know, the rates here are complicated in terms of how many people are winning these claims because the statistics are all over the map. The statistics sometimes site cases where people didn't end up going to court, and it's not clear if people had noticed to go to court or not, and so people will say people lose or some people will say people win, because they'll only count. You have to leave it there. Thanks, thanks so much. It is

a very very confusing area of the law. Thanks so much. Thanks for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple podcasts, SoundCloud and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg