As part of our nation’s commitment to the protection of people fleeing persecution, and consistent with our international obligations, it is longstanding federal law that merely transiting through a third country is not a basis to categorically deny asylum to refugees who arrive in the United States. Instead, Congress has spoken directly to the circumstances when a noncitizen may be deemed ineligible for asylum based on the person’s relationship to a third country, and intentionally chose narrow ones, such as when the person is firmly resettled elsewhere.
But in July 2019, the Attorney General and Acting Secretary of Homeland Security promulgated a rule that bars virtually all noncitizens fleeing persecution from obtaining asylum in the United States if they passed through another country on their way to the United States, no matter the conditions or purpose of their journey through that country or their prospects for protection, rights, or permanent legal status there. The rule contains no exception for unaccompanied children.
Together with the ACLU Immigrants’ Rights Project and the National Immigrant Justice Center, we challenged the rule in D.C. federal court in August 2019 on behalf of a group of individual asylum seekers who endured past persecution and on behalf of the Tahirih Justice Center, which serves immigrant survivors of gender-based violence. We asked the court to enjoin the rule as violating federal immigration statutes and administrative law. Another ACLU case filed in California in July 2019 against the same rule resulted in an injunction against the rule’s application to California and Arizona only. Our case is aimed at securing nationwide relief.
In June 2020, the Court granted judgment in our favor and held that the rule was not lawfully promulgated under the Administrative Procedure Act. The Court therefore vacated the rule.
The government appealed. After the change in administrations in January 2021, the government stopped defending the rule but asked the appeals court to vacate the district court’s opinion invalidating the rule on the ground that it had become moot. The D.C. Circuit denied that motion in February 2022.
