World War II was followed by massive resettlement of refugees. Millions were removed en masse as national boundaries were redrawn by the victorious powers at Yalta. Some, like the Volga Germans were welcomed in their linguistic homeland, others like European Jews sought refuge and found themselves in a new conflict; in Eastern Europe collaborators with defeated powers and political enemies feared persecution at the hands of the victors.
From that experience the United States with the member states of the United Nations Organization helped birth the 1951 Convention on the Status of Refugees.
Article 33(1) provides that
“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”In 1980 those principles were codified in our law. The Asylum Act 8 U.S.C. 11158 provides that
To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
The Asylum Act also declares that
Any 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 in accordance with this section...
The Trump Administration has relentlessly sought to undercut these principles. It has been challenged by immigrant aid organizations, joined by the United Nations High Commissioner for Refugees in its amicus brief, and twenty two state Attorneys General. The administration has now received its most comprehensive rebuttal. The United States Court of Appeals has declared unenforceable the November 2018 Proclamation of the President and simultaneous `emergency' Rule which declare that despite the plain words of 8 U.S.C. 1158 no one is eligible for asylum if they did not enter at a "designated port of arrival".
Affirming the injunction issued by District Judge Jon S. Tigar (N.D. Cal.) in East Bay Sanctuary v. Barr [950 F.3d 1242], the Ninth Circuit panel has affirmed the preliminary injunction of both the point of entry asylum eligibility bar, and the Rule's provision that an asylum applicant's illegal entry would rebut her "credible fear" allegation. Writing for the panel Judge Richard Paez described the Rule's impact as "staggering" and as a "categorical ban on immigrants who use a method of entry explicitly authorized by Congress".
What next?
The injunction, although it has not been stayed, has no practical effect because the Trump administration has effectively barred asylum applicants by other means - the `third country bar rule' and the public charge rule. In the first a Presidential Proclamation and Rule (issued without notice and comment) made ineligible anyone entering on the southern border who did not seek and was not denied asylum in Mexico. The Supreme Court stayed a second order by Judge Tigar over a strong dissent by Justice Sonia Sotomayor. Such a stay is highly unusual since it expresses a readiness to reject a thoroughly documented and developed record and reasoned opinion by a trial judge whose order was then under pending review by the Court of Appeals.
Another anti-refugee rule - the `public charge' rule bars anyone deemed likely to apply at some point for government benefits such as Medicaid or food stamps. In New York v. Department of Homeland Security, an action by New York and 22 other states was stayed by the Supreme Court, as was another action by the State of Illinois. That stay drew a strong rebuke from Sotomayor just eight days ago in another immigration related case Wolf v. Cook County.
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