9th Circuit allows 3rd country asylum-related transit ban to continue

The Biden Administration, in its attempt to curb what it sees as unregulated migration, has made a point of pairing tighter border controls with expanded pathways for lawful immigration. In doing so, it has emphasized that one policy cannot exist without the other, expanding greater access to lawful immigration (i.e., through the creation of humanitarian parole programs for citizens of Ukraine, Cuba, Nicaragua, Venezuela, Colombia, Guatemala, Haiti, El Salvador, and Honduras) depends on punishing individuals who continue to cross the Southern border through “irregular channels” of migration.

This focus on punitive measures can be seen in the resurrection of the so-called “Transit Ban,” a policy of the Trump Administration that has been revived and revised as the “stick” to the “carrot” of the parole programs. Under the Trump Administration rule, non-citizens who transited through a third country (i.e., not their country of citizenship) were ineligible for asylum in the United States unless they could demonstrate that they were the victims of human trafficking, that the country of transit was not a party to the Refugee Convention (very few countries are not), or that they had been denied asylum in the third country. Eventually, this rule was declared to be an unlawful restriction on who could qualify for asylum in East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019). The invalidity of the rule was affirmed on appeal. East Bay Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020).

Another Trump Administration rule, known as the “Entry Ban,” rendered noncitizens ineligible for asylum if they entered the United States between ports of entry. It, too, was found invalid. East Bay Sanctuary Covenant v. Barr, 349 F. Supp. 3d 838 (N.D. Cal 2018). This decision was also upheld on appeal. East Bay Sanctuary Covenant v. Barr, 993 F.3d 640, 658 (9th Cir. 2021).

The Biden Administration’s current rule merges the Transit and Entry Bans, and creates a rebuttable presumption that anyone who enters the United States at the southern border between May 11, 2023 and May 11, 2025, and who traveled through a third country, is ineligible for asylum. 88 Fed. Reg. 31314, 31449-52 (May 16, 2023). The rule also carves out several exemptions from the presumption, including unaccompanied children, anyone who obtains parole to enter the country, anyone who presents at a port of entry after obtaining an appointment on the CBP One app, anyone who presents at a port of entry without an appointment and can prove an inability to obtain an appointment due to certain extenuating circumstances (i.e., illiteracy, significant technical failure, language barrier), and anyone who sought asylum in a country of transit and received a final denial. Id. Outside of the enumerated exceptions, applicants must show “exceptionally compelling circumstances” to rebut the presumption of ineligibility. Id.

East Bay Sanctuary Covenant, the same plaintiff who challenged the Trump Administration’s Transit and Entry Bans, filed suit alleging that the Biden Administration’s rule also constituted an unlawful restriction on asylum. The District Court agreed, finding “[t]hat a noncitizen may attempt to preserve their eligibility for asylum by meeting another of the Rule’s exceptions, or that their failure to present at a port of entry may be excused upon a showing of exceptionally compelling circumstances, does not address the reason why restricting asylum eligibility based on place of entry conflicts with the law.” East Bay Sanctuary Covenant v. Biden, --- F.Supp.3d -----, 2023 WL 4729278, *10 (July 25, 2023). Although the District Court vacated the rule, it also stayed its decision for 14 days, allowing the Department of Justice the opportunity to seek emergency relief from the Ninth Circuit Court of Appeals. Id. at *19.

On Aug. 3, 2023, the Ninth Circuit granted a stay of the District Court’s decision, permitting the revised Transit Ban to continue in effect. See Case 23-16032, Docket Entry 21. The court also ordered an expedited briefing schedule, which is set to be completed in Oct. 2023, with oral arguments scheduled on Nov. 7, 2023. Id. at Docket Entries 27, 29. A decision on the legality of the rule is anticipated sometime thereafter.

The decision to stay the District Court’s ruling is not without controversy. After all, as Judge Van Dyke (somewhat sarcastically) pointed out in his dissent from the order granting the stay, the Biden Rule “looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.” Case 23-16032, Docket Entry 21, p. 3. One cannot help but wonder (as Judge Van Dyke insinuates) if political leanings played a much greater role than they should have in the decision to permit the implementation of the Biden Transit Ban pending appeal. The fact that the Biden Transit Ban currently has a built-in “expiration date” in 2025 also raises the suspicion that the rule has less to do with the legal definition of an asylee and much more to do with the political and media frenzy that constantly surround the disclosure of figures related to the number of asylum seekers at the border. Put frankly, the drafters seem more concerned with lowering the number of asylum seekers at the Mexican-American border in the immediate future than with the statutory definition of an asylee.

If Judge Tigar was correct in 2019 and 2020, and an applicant’s manner of entry or path of travel is wholly irrelevant to asylum eligibility as defined by Congress, then it’s hard to see how the existence of CBP One and parole programs for select nationalities can save the Biden Transit Ban from being struck down on the same infirmities. It remains to be seen if the Ninth Circuit will find its precedent demands this conclusion.