ICE OPLA Updated Guidance on Transit Asylum Ban IFR (Dkt. 65-3) — East Bay Sanctuary v. Barr (N.D. Cal.)

Summary

An OPLA broadcast message to OPLA headquarters and field personnel dated Tuesday, August 27, 2019, subject UPDATED GUIDANCE - Asylum Eligibility and Procedural Modifications IFR, filed as Document 65-3, stamped Filed 08/29/19, in Case 4:19-cv-04073-JST in the U.S. District Court, Northern District of California. The message clarifies that the IFR bar to asylum, 84 Fed. Reg. 33829 (July 16, 2019), applies by the date of entry or attempted entry across the southern land border on or after July 16, 2019. It says OPLA will treat the preliminary injunction, as limited to the Ninth Circuit on August 16, 2019, as applying to aliens apprehended, detained or adjudicated within the Ninth Circuit. The message is marked privileged attorney work product, and its pages after the first carry no text.

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From:
To:
OPLA HQ Personnel; OPLA Field Personnel
Subject:
Broadcast Message: UPDATED GUIDANCE - Asylum Eligibility and Procedural Modifications IFR
Date:
Tuesday, August 27, 2019 5:21:18 PM
***PRIVILEGED***ATTORNEY WORK PRODUCT***FOR OFFICIAL USE
ONLY***NOT FOR DISSEMINATION OUTSIDE OPLA***
Disseminated on behalf of 
…
This is an update to clarify prior guidance concerning the applicability of Asylum Eligibility and
Procedural Modifications, 84 Fed. Reg. 33829 (July 16, 2019) (to be codified at 8 C.F.R. §§
208.13(c)(4), 1208.13(c)(4)) (the “IFR”).  The bar to asylum created by the IFR only applies to an
alien who enters, attempts to enter, or arrives in the United States across the southern land border on
or after July 16, 2019, after transiting through at least one country outside the alien’s country of last
citizenship, nationality, or last habitual residence en route to the United States, unless an exception
applies.  Accordingly, the date of the alien’s entry or attempted entry controls application of the
IFR, not the filing date of the alien’s asylum application.  
As explained in the prior guidance below, on July 24, 2019, a U.S. district court preliminary
enjoined the IFR on a nationwide basis, but that preliminary injunction (PI) was later limited by the
U.S. Court of Appeals for the Ninth Circuit to apply only within the Ninth Circuit itself.  See East
Bay Sanctuary Covenant, et al. v. Barr, --- F.3d ---, 2019 WL 3850928 (9th Cir. Aug. 16, 2019).  In
order to ensure compliance with the PI, as modified, and mitigate further litigation risk, OPLA will
consider the PI to apply in situations where the alien:  (i) was initially apprehended by DHS within
the jurisdiction of the Ninth Circuit; (ii) is detained within the Ninth Circuit at the time of
adjudication of the asylum application; or (iii) was initially located outside the Ninth Circuit but
whose asylum application is subsequently adjudicated within the Ninth Circuit.  OPLA will not
consider the injunction to apply to aliens with less attenuated connections to the Ninth Circuit, such
as where an alien merely visited or traveled through the Ninth Circuit or was temporarily detained in
the Ninth Circuit but transferred elsewhere prior to adjudication of his or her asylum application.
With respect to asylum applications that were adjudicated by an immigration judge outside the Ninth
Circuit between July 24, 2019 and August 16, 2019 to which the IFR would have applied had it not
been preliminarily enjoined by the district court during that specific time period:
For Administratively Final Grants of Asylum: 
For Non-Final Grants of Asylum: 
Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 1 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 2 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 3 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 4 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 5 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 6 of 7

Case 4:19-cv-04073-JST   Document 65-3   Filed 08/29/19   Page 7 of 7

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