Court filing
Amicus Brief of Immigration Law Professors — East Bay Sanctuary v. Trump (Dkt. 79)
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2018-12-05 |
U.S. District Court for the Northern District of California · No. 3:18-cv-06810-JST · Doc. 79 · 2018-12-05 · Docket on CourtListener
Summary
A brief of immigration law professors as amici curiae supporting the plaintiffs in East Bay Sanctuary Covenant, et al. v. Donald J. Trump, et al., Case No. 3:18-cv-06810-JST, in the U.S. District Court for the Northern District of California, filed December 5, 2018 as Document 79. The brief argues that a new Department of Homeland Security rule barring asylum for those who arrive between designated ports of entry conflicts with 8 U.S.C. § 1158(a)(1) and the Refugee Act of 1980, Pub. L. No. 96-212. It argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, already occupies that field through expedited removal, the 1-year filing rule and safe third country provisions. It contends that under Matter of Pula manner of entry should bear on discretion case by case, and that the Proclamation exceeds the President's power under 8 U.S.C. § 1182(f).
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DAVID C. MARCUS (SBN: 158704)
david.marcus@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
350 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Telephone: +1 213 443 5312
Facsimile: +1 213 443 5400
Attorney for Amici Curiae
Additional attorneys listed in signature block
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EAST BAY SANCTUARY COVENANT
ET AL.,
Plaintiffs,
v.
DONALD J. TRUMP, PRESIDENT OF
THE UNITED STATES ET AL.,
Defendants.
Case No. 3:18-cv-06810-JST
BRIEF OF PROFESSORS OF
IMMIGRATION LAW AS AMICI
CURIAE IN SUPPORT OF
PLAINTIFFS
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................................. ii
INTEREST OF AMICI .......................................................................................................................1
SUMMARY OF ARGUMENT ..........................................................................................................1
ARGUMENT ......................................................................................................................................3
I
The DHS Rule Runs Counter to the Plain Meaning of the INA’s Asylum ProvisionS ..........3
A.
Plain Meaning .............................................................................................................4
B.
Congress’s Intentional Distinction Between Asylum and Withholding .....................5
II
IIRIRA’s Conjunction Of Detailed Procedural Limits On Asylum With Threshold
Eligibility For Arriving Asylum Seekers Occupies The Field That The New DHS Rule
Purports To CoveR ..................................................................................................................7
A.
Expedited Removal .....................................................................................................8
B.
The 1-Year Rule for Asylum Applications .................................................................9
C.
Provision for Safe Third Country Agreements .........................................................10
III
Based On The Statutory Scheme And Past Practice, The Exercise Of Discretion To Deny
Asylum Based On An Applicant’s Manner Of EntryShould Be Case-by-Case, Not
Categorical ............................................................................................................................11
CONCLUSION .................................................................................................................................13
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TABLE OF AUTHORITIES
Page(s)
CASES
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ................................................12
Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018) ..............................6
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..............................................................................5, 6
Matter of A-H-, 23 I. & N. Dec. 774 (A.G. 2005) ............................................................................11
Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987), superseded in part by statute on other grounds as
recognized in Andriasian v. I.N.S., 180 F.3d 1033 (9th Cir. 1999) ............................3, 11, 12
Trump v. Hawaii, 138 S. Ct. 2392 (2018) .........................................................................................12
STATUTES, RULES, AND REGULATIONS
8 C.F.R. § 208.16 ..............................................................................................................................11
8 U.S.C. § 1152 .................................................................................................................................12
8 U.S.C. § 1157 ...............................................................................................................................5, 6
8 U.S.C. § 1158 ......................................................................................................................... passim
8 U.S.C. § 1159 ...................................................................................................................................6
8 U.S.C. § 1182 .............................................................................................................................3, 12
8 U.S.C. § 1225 ...........................................................................................................................7, 8, 9
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009-546 ..................................................................................................................2
Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) ....................................12
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) .................................................1, 3, 4
OTHER AUTHORITIES
Immigration in the National Interest Act of 1995: Hearing on H.R. 1915 Before the H. Comm. on
the Judiciary, 104th Cong. 2 (1995) .......................................................................................1
Proposals to Reduce Illegal Immigration and Control Costs to Taxpayers: Hearing on S. 269
Before the S. Comm. on the Judiciary, 104th Cong. 23 (1995) ..............................................1
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Refugee Act of 1979: Hearing on H.R. 2816 Before the H. Subcomm. on Int’l Operations, Comm.
on Foreign Affairs, 96th Congress 72 (1979) .........................................................................2
S. Rep. No. 96-590 (1980) ..................................................................................................................5
Schmitt, Bill to Limit Immigration Faces a Setback in Senate, N.Y. Times, Mar. 14, 1996 ..............7
Schrag et al., Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to
Asylum, 52 Wm. & Mary L. Rev. 651 (2010) .........................................................................9
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INTEREST OF AMICI
Amici curiae are law professors who teach and publish scholarship about United States
immigration law. Amici have collectively studied the implementation and history of the
Immigration and Nationality Act (“INA”) for decades, and have written extensively on the topic.
They accordingly have an abiding interest in the proper interpretation and administration of the
Nation’s immigration laws, particularly the INA.*
SUMMARY OF ARGUMENT
The plain language, plan, and structure of both the Refugee Act of 1980 (“Refugee Act”),
Pub. L. No. 96-212, 94 Stat. 102, 105 (1980), and the Immigration and Nationality Act (“INA”), 8
U.S.C. §1101 et seq., support threshold eligibility for asylum for any foreign national “at a land
border or port of entry.” Refugee Act of 1980 § 208 (emphasis added); see 8 U.S.C. § 1158(a)(1)
(providing that “[a]ny alien … who arrives in the United States (whether or not at a designated port
of arrival) … may apply for asylum”). This robust textual commitment to asylum eligibility
provides a stark comparison with the inadequate remedies that the new Department of Homeland
Security (DHS) rule reserves for arrivals between designated entry points.
The language of the INA did not emerge in a vacuum. Rather, it was the end-product of a
lengthy procession of committee hearings, bipartisan deliberations, and consultations with the White
House. The resulting compromise reflected legislators’ understanding that asylum was “a cherished
thing.” See Proposals to Reduce Illegal Immigration and Control Costs to Taxpayers: Hearing on S.
269 Before the S. Comm. on the Judiciary, 104th Cong. 23 (1995) (Statement of Sen. Alan K.
Simpson) [hereinafter Simpson Stmt.]. Yet the current language at 8 U.S.C. § 1158(a)(1) also
illustrates some legislators’ serious concerns that maintaining border security required stricter
asylum procedures, including more summary processing, increased detention of arriving foreign
nationals, and time-limits for asylum claims. See Immigration in the National Interest Act of 1995:
*
A complete list of amici is set forth in the appendix to this brief. University affiliations are listed solely for
informational purposes.
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Hearing on H.R. 1915 Before the H. Comm. on the Judiciary, 104th Cong. 2 (1995) (Statement of
Rep. Lamar Smith) [hereinafter Smith Stmt.].
The restrictions in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 were controversial—they engendered
opposition on legal and policy grounds that continues to the present day. In this case, that
controversy is precisely the point. IIRIRA represented a hard-fought compromise to achieve both
access to asylum and protection of U.S. borders. The new DHS rule seeks to undo the compromise
that Congress reached.
As Congress heard in deliberations on what ultimately became the Refugee Act of 1980,
preserving all arriving asylum-seekers’ threshold eligibility serves vital humanitarian purposes. In
testimony before the House Foreign Relations Committee, David A. Martin, a State Department
lawyer who subsequently served as a senior government attorney on immigration and became a
leading immigration scholar, explained that people flee persecution through any means available to
them, and “one way or another, arrive on our shores” seeking refuge. The Refugee Act of 1979:
Hearing on H.R. 2816 Before the H. Subcomm. on Int’l Operations, Comm. on Foreign Affairs, 96th
Congress 72 (1979) (Statement of David A. Martin) [hereinafter Martin Stmt.]. The logic of
Professor Martin’s comment and the INA’s long textual commitment to the principle of threshold
eligibility for all arriving asylum seekers is clear: Asylum seekers cannot simply choose the location
of their arrival. Since asylum seekers often flee for their lives and may travel through third countries
that are also unsafe, the particular location of the asylum seekers’ arrival “on our shores” has no
necessary relation to either the asylum seekers’ character or to the merits of their claims.
In Congress’s scheme, preserving asylum-seekers’ threshold eligibility leaves room for
denials on categorical grounds recognized by Congress and for the exercise of case-by-case
discretion. For example, IIRIRA imposes categorical bars hinging on an applicant’s criminal record
and ongoing threat to the country, threat to national security, and resettlement in another country
prior to arriving in the United States. 8 U.S.C. §§ 1158(b)(2)(A)(ii), (iii), (iv), (vi).
In addition to the categorical bars, IIRIRA provides that “[t]he Attorney General may by
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regulation establish additional limitations and conditions, consistent with this section.” 8 U.S.C.
§ 1158(b)(2)(C) (emphasis added). While further exercises of official discretion have a valuable
ongoing role in asylum determinations, that discretion is not boundless. The statute’s requirement
that discretion be “consistent with this section” includes adherence to the underlying principle of
threshold eligibility for all arriving aliens.
As a key agency precedent held over thirty years ago, an applicant’s manner of entry should
influence discretion on a case-by-case—not categorical—basis. A decisionmaker should treat
manner of entry as “one of a number of factors,” including whether the claimant has sought asylum
in another country before applying in the United States. Matter of Pula, 19 I. & N. Dec. 467, 473
(BIA 1987), superseded in part by statute on other grounds as recognized in Andriasian v. I.N.S.,
180 F.3d 1033, 1043-1044 & n.17 (9th Cir. 1999). Manner of entry “should not be considered in
such a way that the practical effect is to deny relief in virtually all cases.” Id.
Ignoring this longtime practice, the new DHS rule imposes a categorical bar that would result
in denial of virtually all asylum claims filed by foreign nationals arriving at undesignated border
points. In place of asylum, the new DHS rule would limit available remedies to withholding of
removal or relief under the Convention Against Torture (“CAT”), which impose exponentially
higher standards of proof on the applicant fleeing harm and do not provide lasting protection against
removal. DHS rule’s categorical denial of asylum is therefore not “consistent with” the INA. For
the same reason, the Proclamation accompanying the rule is beyond the President’s power under 8
U.S.C. § 1182(f).
ARGUMENT
I
The DHS Rule Runs Counter to the Plain Meaning of the INA’s Asylum Provisions
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Congress expressly provided that foreign nationals fleeing persecution can “apply for asylum” at any
point along a U.S. land border, “whether or not at a designated port of arrival.” 8 U.S.C.
§ 1158(a)(1) (emphasis added). IIRIRA’s provision for arriving asylum-seekers’ threshold
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eligibility reinforced plain language in the Refugee Act of 1980. Refugee Act of 1980 § 208
(authorizing asylum applications “at a land border” of the United States). The trajectory of
legislative text toward more specific guarantees of threshold eligibility is manifestly inconsistent
with the new DHS rule’s categorical denial of asylum for foreign nationals who arrive at
undesignated border locations. Moreover, the new rule’s effort to force asylum seekers toward more
contingent remedies such as withholding of removal and relief under the CAT is inconsistent with
both the plain meaning of the asylum provisions and Congress’s deliberate prioritizing of asylum
over withholding and CAT relief.
A.
Plain Meaning
As part of the Refugee Act of 1980’s effort to “provide a permanent and systematic
procedure for the admission … of refugees,” Refugee Act § 101(b), Congress authorized asylum
claims by any foreign national “physically present in the United States or at a land border or port of
entry.” Id. § 208. This language clearly demonstrated Congress’s commitment to asylum-seekers’
threshold eligibility. First, Congress decided that any foreign national “physically present in the
United States” could establish asylum eligibility regardless of whether the individual entered without
inspection (“EWI”). See id.; see also 8 U.S.C. § 1158(a)(1). The clear text of the 1980 Refugee Act
reflects Congress’s explicit decision not to condition eligibility for asylum on an applicant’s manner
of entry. Indeed, Congress allowed individuals the ability to apply for asylum whether they entered
“at a land border or port of entry.”
Congress amended this text in 1996 to reinforce its adherence to the threshold eligibility of
asylum seekers who arrived at any point along a land border. Much of IIRIRA reflected Congress’s
abiding concern with border security. Nevertheless, the 1996 legislation balanced an array of stricter
procedures with even clearer language about locational asylum eligibility. For example, the 1996
text of § 1158(a)(1) provided that “[a]ny alien who is physically present in the United States or who
arrives in the United States (whether or not at a designated port of arrival and including an alien
who is brought to the United States after having been interdicted in international or United States
waters), irrespective of such alien’s status, may apply for asylum.” (Emphasis added.)
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Compared with the already clear text of the Refugee Act, IIRIRA’s language is even more
compelling evidence of Congress’s commitment to threshold eligibility of asylum seekers arriving at
any border location. The 1996 provision provided a meticulous catalog of arriving asylum seekers.
That careful catalog demonstrates Congress’s express commitment to the principle of threshold
eligibility for asylum seekers who have “one way or another, arrive[d] on our shores,” seeking
refuge from persecution. See Martin Stmt. 72.
B.
Congress’s Intentional Distinction Between Asylum and Withholding
As the Court explained in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), Congress carefully
distinguished between asylum and the more demanding and contingent remedy of withholding of
removal. Id. at 436-41. Compared with asylum, withholding of removal—and CAT relief, the other
remedy under the new DHS rule available to asylum seekers arriving at an undesignated border
point—is both harder to get and easier to lose. Id. at 440-41. In addition, only asylum provides a
successful applicant with a chance for family reunification. 8 U.S.C. §§ 1158(b)(3)(A);
1157(c)(2)(A). The functional differences between asylum on the one hand, and withholding and
CAT relief on the other, demonstrate that Congress’s provision for asylum eligibility in § 1158(a)(1)
was entirely intentional. The new DHS rule undermines that legislative choice.
The standard of proof for withholding and CAT relief is far higher than the standard for
asylum. The 1980 Refugee Act’s lesser quantum of proof for asylum is “based directly” on and
“intended to be construed consistent” with international law. See S. Rep. No. 96-590, at 20 (1980)
(cited in Cardoza-Fonseca, 480 U.S. at 437). Both withholding and relief under the CAT require an
applicant to show by a preponderance of the evidence that she would be subject to persecution (or
torture in the case of the CAT) upon return to her country of origin. See Cardoza-Fonseca, 480 U.S.
at 430 (noting that applicant for withholding must “demonstrate a ‘clear probability of
persecution’”). In contrast, the Supreme Court has held that an applicant can more readily satisfy
asylum’s “well-founded fear” standard. Id. at 431 (explaining that “[o]ne can certainly have a well-
founded fear of an event happening when there is less than a 50% chance of the occurrence taking
place.”).
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Explaining its conclusion that asylum requires a lower standard of proof, the Cardoza-
Fonseca Court cited a vivid example from the work of a leading scholar of refugee law, who had
written that “well-founded fear” would logically follow if “it is known that in the applicant’s country
of origin every tenth adult male is either put to death or sent to some remote labor camp.” 480 U.S.
at 431 (emphasis added). Parsing the international law standard on which Congress had relied in the
1980 Act, the Court found that “[t]here is simply no room in the United Nations’ definition [of
asylum] for concluding that because an applicant only has a 10% chance of being shot, tortured, or
otherwise persecuted … he or she has no ‘well-founded fear’ of the event happening.” Id. at 440
(citation omitted). According to the Court, Congress clearly believed that a standard higher than
10% was unduly onerous. Particularly since a refugee must often leave a place of danger hurriedly
and must then reconstruct past events thousands of miles away to gain asylum, insistence on a
preponderance standard would provide inadequate protection.
Withholding and CAT relief are inherently more contingent and fragile. Neither withholding
nor CAT relief vitiate an already-entered removal order or permit the applicant to adjust to lawful
permanent resident (LPR) status. See Guerrero-Sanchez v. Warden, 905 F.3d 208, 216 (3d Cir.
2018). In contrast, an asylee may after one year adjust to LPR status. 8 U.S.C. § 1159(a)(1)-(2).
In addition, a grant of asylum, as opposed to withholding or CAT relief, has significant
consequences for family reunification. Congress provided that the spouse and children of an asylee
may be granted the very same lawful status when “accompanying, or following to join” a recipient
of the asylum. 8 U.S.C. §§ 1158(b)(3)(A), 1157(c)(2)(A). Recipients of withholding and CAT relief
lack this statutory opportunity.
Withholding and CAT relief are thus inadequate substitutes for asylum. Congress was surely
aware of this stark difference when it authorized broad threshold eligibility for asylum seekers
arriving at any point along the border. In relegating asylum seekers arriving at an undesignated
border point to more contingent and demanding remedies such as withholding and CAT relief, the
new DHS rule clashes with the INA’s overall scheme.
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II
IIRIRA’s Conjunction Of Detailed Procedural Limits On Asylum With Threshold
Eligibility For Arriving Asylum Seekers Occupies The Field That The New DHS Rule
Purports To Cover
IIRIRA was a fraught and hard-fought compromise between the threshold eligibility for
asylum affirmed in § 1158(a)(1) and rigorous procedural limits on asylum secured by legislators who
contended that the border was in “crisis.” See Smith Stmt. 2. The legislative deal emerged from
multiple congressional hearings featuring representatives from a myriad of stakeholders, followed by
intensive negotiations and consultation with the White House. See Schmitt, Bill to Limit
Immigration Faces a Setback in Senate, N.Y. Times, Mar. 14, 1996, at B12 (discussing complex
legislative maneuvering prior to IIRIRA’s passage); see also Simpson Stmt. 13 (noting that in the
“early 1980’s [in preparation for enactment of the Immigration and Control Act of 1986] we held 22
hearings” and asserting that, “I don’t want to have that many again”). The new DHS rule disrupts
that exacting legislative agreement.
In 1996, Congress—even as it enacted the clear language on threshold eligibility for
asylum—enacted significant procedural curbs. Most importantly, Congress authorized expedited
removal for foreign nationals arrested at or near a U.S. border or port of entry, 8 U.S.C.
§§ 1225(b)(1)(A)(i), (ii), required detention of foreign nationals arrested at or near the border, id.
§ 1225(b)(1)(B)(ii), limited the time in which to file asylum applications, id. § 1158(a)(2)(B), and
authorized the U.S. government to enter into agreements with foreign countries to safely house
asylum applicants pending a “full and fair” adjudication in those countries of the individual’s claim
for asylum or related protection, id. § 1158(a)(2)(A). Each of these restrictions flowed from
Congress’s concern that the absence of such restrictions would increase unauthorized border
crossings, particularly along the boundary between the United States and Mexico.
Many legislators accepted these restrictions with great reluctance.1 Each of the restrictions
has elicited ongoing policy debate, and at least two of the curbs—expedited removal and mandatory
detention—continue to face legal challenges. The debate about including these restrictions
1
See 142 Cong. Rec. 26703 (Sept. 30, 1996) (remarks of Sen. Leahy) (arguing that World War II refugees could
have been “summarily excluded” from United States under expedited removal provisions).
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highlights the perils of construing IIRIRA as authorizing additional atextual restrictions imposed
unilaterally by the executive branch. Additional categorical restrictions not contemplated by
Congress would distort the difficult compromise Congress reached in 1996. That risk is even more
dire when the executive branch’s curbs modify IIRIRA’s clear language on asylum eligibility.
A.
Expedited Removal
The most prominent procedural restriction on asylum in IIRIRA is its provisions for
“expedited removal” of arriving foreign nationals. Expedited removal directly addresses the border
pressures that concerned Congress. Under the provisions, immigration officers who apprehend a
foreign national arriving in the United States without a visa may summarily order the removal of that
person “without further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i) (emphasis added).
Apprehended individuals receive no hearing of any kind before an immigration judge in the
Department of Justice’s Executive Office for Immigration Review (EOIR). Instead, U.S.
immigration officers may on an expedited basis determine that migrants are removable and may then
effect that removal.
Removal power is subject to only one caveat, which is relevant to the legality of the new
rule. The expedited removal provisions require additional procedures for an arriving foreign
national who “indicates either an intention to apply for asylum under section 1158 … or a fear of
persecution.” 8 U.S.C. § 1225(b)(1)(A)(ii). In such instances, further steps are necessary.
Importantly, this statutory exception expressly tracks the INA’s language on threshold eligibility for
asylum. First, the caveat on expedited removal provides a cross-reference to § 1158 (the asylum
procedure provision), which includes express mention of threshold eligibility. Second, and even
more clearly, Congress in the very first subsection of the expedited removal provisions inserted
language that is virtually identical to the language it used in § 1158, making the provision applicable
to an alien who is “present in the United States” or who “arrives in the United States (whether or not
at a designated port of arrival … ).” Id. § 1225(a)(1) (emphasis added).
Under expedited removal, persons asserting a claim for asylum “whether or not at a
designated port of arrival” get only an interview with an asylum officer, who determines whether the
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applicant has a “credible fear” of persecution. 8 U.S.C. § 1225(b)(1)(B)(ii). If the asylum officer
decides that the applicant lacks a credible fear, the asylum officer shall order the removal of the
applicant “without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I).
The only procedural safeguard provided in this situation is a nonadversarial hearing before an
immigration judge, held very quickly after the determination of no credible fear, consistent with the
statutory requirement to conduct the review “as expeditiously as possible.” 8 U.S.C.
§ 1225(b)(1)(iii)(III). Applicants only receive an adversarial hearing before an immigration judge if
the asylum officer determines that the applicant has a “credible fear” of persecution. Id.
§ 1225(b)(1)(B)(ii). Moreover, the asylum seeker may be detained for the pendency of the EOIR
proceeding. Id. The rigorous procedural gauntlet established by Congress’s detailed expedited
removal process indicates that Congress was fully mindful of the issue of border inflow that the new
DHS rule purports to address.
B.
The 1-Year Rule for Asylum Applications
As part of its extensive web of detailed procedural restrictions on asylum, IIRIRA also
imposed a significant temporal limit on filing of asylum applications. Absent “changed … or
extraordinary circumstances,” an applicant has to file for asylum “within 1 year” of the applicant’s
arrival in the United States. See 8 U.S.C. §§ 1158(a)(2)(B), (D). The one-year rule drastically
narrows the relief available to persons who entered the United States at an undesignated border
point. See Schrag et al., Rejecting Refugees: Homeland Security’s Administration of the One-Year
Bar to Asylum, 52 Wm. & Mary L. Rev. 651, 666 (2010).
Under the 1-year rule, a foreign national in the United States, including one who has entered
the United States at an undesignated border location (EWI) has only a year to file an asylum claim
“affirmatively” (i.e., on his or her own initiative) or assert an asylum claim “defensively” to gain
relief in removal proceedings. Congress was well aware that EWIs filed asylum claims after their
entry. See Simpson Stmt. 23. If Congress wished to categorically curtail these post-entry asylum
applications by EWIs, it could have simply precluded all such claims. Moreover, legislators would
likely have viewed enactment of the one-year rule as less urgent if Congress had empowered
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immigration officials to categorically deny EWIs’ asylum claims, as the new DHS rule provides.
Congress’s choice of the time limit, instead of direct curbs on asylum-seekers’ manner of entry,
shows that Congress chose to preserve threshold eligibility but subject it to significant restraints.
Again, the new DHS rule undermines Congress’s carefully calibrated compromise.
C.
Provision for Safe Third Country Agreements
Yet another procedural limitation in IIRIRA is contingent but potentially momentous
regarding the border: the provision for establishment of “[s]afe third country” agreements. 8 U.S.C.
§ 1158(a)(2)(A). Under this provision, the United States would be able to remove an asylum
applicant to another country, if the United States and that country had entered into a bilateral
agreement to that effect or each was a party to a multilateral agreement on the subject. Removal
under this provision would require a finding by the Attorney General that the country receiving
transferees would not threaten them with persecution. In addition, transfer would have to include
access to a “full and fair procedure” for adjudicating the applicant’s asylum petition. Id.
Congress clearly intended the safe third country concept to provide a potential safety valve
for pressure from border inflows. See Simpson Stmt. 23 (criticizing “people fleeing … just wanting
to get out of their country … [t]hey go through three or four other countries and get here and say
they are seeking asylum”). An agreement with another country that met the conditions set out above
would relieve pressure at U.S. borders. Although the provision does not identify any possible third
countries by name, the contiguity of Mexico with the United States suggests strongly that legislators
contemplated Mexico as a plausible partner with the United States on such arrangements.
As with the other procedural restrictions mentioned in this part, the safe third country
provision has elicited widespread criticism from refugee advocates and legal scholars. Congress was
willing to take this risk to ease pressure on the border. Here, too, however, the detailed nature of
Congress’s restriction illuminates Congress’s reinforcement of threshold eligibility in cases when a
safe third country agreement cannot be reached. Given the level of detail in Congress’s restrictions,
the additional categorical limits on threshold eligibility in the new DHS rule are simply not
“consistent” with the INA’s asylum provisions, as the statute requires. 8 U.S.C. § 1158(b)(2)(C).
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III
Based On The Statutory Scheme And Past Practice, The Exercise Of Discretion To
Deny Asylum Based On An Applicant’s Manner Of Entry Should Be Case-by-Case, Not
Categorical
Based on past practice, immigration officials have viewed discretion as applying on a case-
by-case basis. As asylum law has matured since 1980, certain uses of discretion have hardened into
categorical bars, often with express statutory authorization. However, longtime administrative
precedent indicates that an applicant’s manner of entry into the United States should be considered
on a case-by-case basis, not as a categorical bar. See Pula, 19 I. & N. Dec. at 473.
Outside of statutory bars such as disqualification based on a “particularly serious crime,” 8
U.S.C. § 1158(b)(2)(A)(ii), agency practice has disfavored categorical bases for denial. For
example, in Matter of A-H-, 23 I. & N. Dec. 774, 780-83 (A.G. 2005), the Attorney General
determined that the exercise of discretion to deny asylum was appropriate regarding a former senior
political official in an Algerian organization that collaborated with groups notorious for terrorist
violence. Yet, even in this charged setting, the Attorney General considered the “equities that weigh
in the respondent’s favor,” including his United States-citizen children. Id. at 783. It would be
incongruous to exercise case-by-case discretion in cases of political violence, yet resort to
categorical rules to deny asylum seekers who merely arrive at undesignated border locations.
Indeed, the asylum regulations even restrict case-by-case discretionary denials. For example,
the regulations require that when an applicant receives withholding of removal after a discretionary
denial of asylum, the denial of asylum “shall be reconsidered.” 8 C.F.R. 208.16(e). The regulation
requires reconsideration to minimize hardship to the applicant’s “spouse or minor children,” who in
the event of an asylum grant would be able to join the applicant in the United States. See id.; see
also 8 U.S.C. § 1158(b)(3)(A) (granting asylum status to spouse and children “accompanying, or
following to join,” the asylee); cf. Pula, 19 I. & N. Dec. at 474 (exercise of discretion to deny an
asylum claim triggers “particular concern” when a claimant proves “well-founded fear” for asylum
but “cannot meet the higher burden required for withholding of deportation… [d]eportation to a
country where the alien may be persecuted thus becomes a strong possibility”). To be sure, this
regulation does not mandate that the decisionmaker reverse a prior discretionary denial. Yet, the
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reconsideration that the rules require illustrates the agency’s well-established awareness of the
adverse and lasting consequences of discretionary denials and their tension with statutory
protections, including provisions for prompt family reunification. The new DHS rule, promulgated
without prior notice and comment, has jettisoned the regulations’ focus on these statutory goals.
Past practice has particularly disfavored categorical rules regarding an asylum applicant’s
manner of entry. The Board of Immigration Appeals (BIA) has held that manner of entry “should
not be considered in such a way that the practical effect is to deny relief in virtually all cases.”
Matter of Pula, 19 I. & N. Dec. at 473. Because asylum seekers are often fleeing for their lives and
cannot pick and choose their mode of border-crossing, categorical use of undesignated-entry-point
arrival to deny asylum claims would risk barring a substantial number of valid asylum claims.
Consequently, the BIA has held that manner of entry “should not be considered in such a way that
the practical effect is to deny relief in virtually all cases,” but should instead be considered as “only
one of a number of factors which should be balanced in exercising discretion.” Id. If
decisionmakers should temper the exercise of negative discretion, as in Pula, even when addressing
the use of fraudulent exit documents, then past practice surely counsels similar care regarding arrival
at an undesignated entry point, which does not in itself involve fraud at all. The new DHS rule’s
abrupt pivot to categorical denial of asylum is thus inconsistent with longtime administrative
construction of the statutory scheme.
The specificity of the statutory scheme rules out any additional increment of authority for the
President under 8 U.S.C. § 1182(f). When Congress has enacted a specific scheme that is later in
time than an earlier, more amorphous provision, the later, more specific scheme should govern. See
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000). Here Congress enacted the
current language on threshold asylum eligibility in 1996, forty-five years after enactment of
§ 1182(f). See Pub. L. No. 82-414, § 212, 66 Stat. 163, 188 (1952).
In Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court read § 1182(f) broadly.
However, that broad construction flowed from the Court’s view that the INA’s nondiscrimination
provision, 8 U.S.C. § 1152(a)(1)(A), should be read narrowly to bar only discrimination in the
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issuance of immigrant visas, not decisions about who should enter the United States. Id. at 2414-15.
In contrast, the threshold asylum eligibility language in § 1158(a)(1), read together with IIRIRA’s
expedited removal provisions containing virtually identical phrasing, demonstrates Congress’s
enactment of a specific framework that covers the field. The INA’s asylum provision already
provides for executive discretion, as long as that discretion is “consistent with this section.” Id.
§ 1158(b)(2)(C). Under the circumstances, resorting to § 1182(f) to broaden the scope of executive
discretion would upset the framework that Congress labored to craft in 1996.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be granted.
DATED: December 5, 2018
PETER S. MARGULIES (pro hac vice)
Roger Williams University School of Law*
10 Metacom Avenue
Bristol, RI 02809
Telephone: 401 254 4564
SHOBA SIVAPRASAD WADHIA (pro hac vice)
Penn State Law*
329 Innovation Blvd., Suite 118
University Park, PA 16802
Telephone: 814 865 3823
Respectfully submitted,
By:
/s/ David C. Marcus
DAVID C. MARCUS (SBN: 158704)
david.marcus@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
350 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Telephone: 213 443 5312
Facsimile: 213 443 5400
*
University affiliations are listed solely for informational purposes.
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APPENDIX: LIST OF AMICI*
Sabrineh Ardalan, Assistant Clinical Professor of Law
Harvard Law School
Linda Bosniak, Professor of Law
Rutgers Law School
Jason Cade, Associate Professor of Law
University of Georgia School of Law
Jennifer M. Chacón, Professor of Law
UCLA School of Law
Gabriel J. Chin, Professor of Law
University of California, Davis School of Law
Marisa Cianciarulo, Professor, Associate Dean
Chapman University Dale E. Fowler School of Law
Alina Das, Professor of Clinical Law
New York University School of Law
Ingrid V. Eagly, Professor of Law
University of California, Los Angeles School of Law
Maryellen Fullerton, Interim Dean and Professor of Law
Brooklyn Law School
Denise L. Gilman, Clinical Professor
University of Texas at Austin School of Law
Pratheepan Gulasekaram, Professor of Law
Santa Clara University School of Law
Margaret Hu, Associate Professor of Law
Washington and Lee School of Law
Alan Hyde, Distinguished Professor of Law
Rutgers Law School
Kate Jastram, Professor of Law
University of California Hastings College of the Law
*
University affiliations are listed solely for informational purposes.
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Anil Kalhan, Professor of Law
Drexel University Thomas R. Kline School of Law
Daniel Kanstroom, Professor of Law
Boston College Law School
Linda Kelly, Professor of Law
Indiana University Robert H. McKinney School of Law
Stephen Legomsky, Professor Emeritus
Washington University Law
Matthew Lindsay, Associate Professor of Law
University of Baltimore School of Law
Peter S. Margulies, Professor of Law
Roger Williams University School of Law
M. Isabel Medina, Professor of Law
Loyola University New Orleans College of Law
Michael Olivas, William B. Bates Distinguished Chair in Law
University of Houston Law Center
Jaya Ramji-Nogales, Associate Dean for Academic Affairs
Temple Beasley School of Law
David Rubenstein, Professor of Law
Washburn University School of Law
Andrew Schoenholtz, Professor from Practice
Georgetown University Law Center
Anita Sinha, Assistant Professor of Law
American University Washington College of Law
Juliet Stumpf, Professor of Law
Lewis & Clark Law School
Philip L. Torrey, Lecturer on Law
Harvard Law School
Shoba Sivaprasad Wadhia, Professor of Law
Penn State Law
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