Federal immigration laws provide for a process called asylum. This allows a foreign national to legally live in the U.S. if they face persecution in their home country due to their race, religion, nationality, political opinion, or membership in a particular social group. A foreign national can pursue this status if they are already in the U.S. or upon their arrival.
Many people have sought asylum at the U.S.-Mexico border. In 2016, the Department of Homeland Security allowed Customs and Border Protection officials to implement a “metering” practice. This became a formal policy in 2018. Under the metering policy, border officials could turn away foreign nationals without valid travel documents if a port of entry was at capacity. This resulted in long waits for asylum seekers in Mexico. Many of them lacked access to basic necessities and even died during this time.
An immigrant rights organization and various asylum seekers challenged the metering policy in court. As the litigation proceeded, DHS and the Department of Justice adopted an Asylum Transit Rule. This generally barred a foreign national from getting asylum if they entered, attempted to enter, or arrived in the U.S. across the Mexican land border on or after July 16, 2019 after traveling through at least one country, unless they had sought protection in the other country and received a final denial.
Many foreign nationals affected by the metering policy would not be able to get asylum under the new rule, even though it did not exist when they arrived at the border and were turned away due to metering. (When the final version of the rule took effect in 2021, the federal government confirmed that it applied to people subject to metering before the rule existed.) The plaintiffs in the lawsuit asked the court to block the application of the rule to a certain group (or “class”) of foreign nationals. This essentially consisted of non-Mexican asylum seekers who could not make a direct asylum claim at a port of entry before July 16, 2019 because of the metering policy.
The trial court found that the metering policy violated federal law, and it barred the government from applying the Asylum Transit Rule to asylum applications by class members. The court also ordered the government to identify people who belonged in the class and tell class members in immigration proceedings or DHS custody about the order. Finally, the court required the government to reopen or reconsider previous decisions that potential class members could not get asylum based on the rule if these people were in removal proceedings.
The case then reached the U.S. Court of Appeals for the Ninth Circuit. The appellate court agreed that the metering policy violated the law. It also largely upheld the order protecting the class of foreign nationals from the application of the Asylum Transit Rule. However, the Ninth Circuit removed the requirement that the government reopen or reconsider previous decisions on its own initiative.
Foreign nationals seeking asylum in the U.S. face plenty of obstacles. This decision by the Ninth Circuit helps ensure that they do not face more obstacles than the law allows.
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