Third Country Transit Bar To Asylum
Author: US Asylum Attorney Alena Shautsova
Recently, the US asylum system underwent massive changes. The Trump administration proposed new regulations and changed the way the old regulations are enforced. One of them is the third country bar to asylum which may prevent one from getting asylum in the US.
Basically, a person who travels to the United States and entered the US at the southern border, will be barred from receiving asylum in the US, if he/she did not try to apply for asylum at least in one country which is not his/her home country through which he/she traveled on the way to the US. This provision applies to persons seeking entry on or after July 19, 2019. U.S. 8 C.F.R. §§208.13 (c )(4). Note that this provision applies to asylum only, not to withholding of removal or relief under convention against torture.
There is, of course, an exception to this general rule: a person who traveled through other countries on their way to the US, can demonstrate that he/she filed for the protection and received a final judgment denying it; or that a person is a victim of severe human trafficking; or transit countries were not parties to the UN Convention and Protocol Relating to the Status of Refugees. U.S. 8 C.F.R. §§208.13 (c )(4) (i)-(iii).
The problem is that is such a rule, “cuts off” asylum chances for those entering the US at the very beginning, as a person who is subject to the rule will not pass the credible fear interview. To renew her chance for asylum, a person would have to pass a reasonable fear interview and be placed in “regular” 240INA removal proceedings where she asks for the redetermination of the bar. But the standard for reasonable fear is higher than for credible fear, and as such, one may not even have a chance to ask for a review of the “transit bar” finding.
This controversial rule is subject to robust litigation, during which the courts stayed its implementation for the border states. As of June 30, 2020, the transit ban is blocked at this time based on the D.C. court’s ruling. A separate stay from the Supreme Court remains in effect with respect to East Bay. On August 28, 2020, the government filed the notice of appeal, seeking to appeal the DC court’s ruling.
Notably, this regulation does not generally affect those who are entering at a different than southern border points. However, the Trump administration placed other “safeguards” in place for them: Safe Third-Country agreements, asylum cooperative agreements, and firm resettlement bars.
If you need help with asylum qualification issues, call our New York Asylum lawyer to book a confidential appointment at 917-885-2261.