Decided November 19, 2018

This case struck a blow to the Trump administration’s attempt to thwart the illegal entry of immigrants along the southern boarder to seek asylum.   The Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). Under the rule, an immigrant would be ineligible for asylum if the President by proclamation limited entry of immigrants across the southern border with Mexico after the effective date of the proclamation.  Of course the president did make a proclamation: “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.” The joint effect of the rule and proclamation would be to prevent individuals who entered the United States without permission, at other than a port of entry, from being granted asylum.  Such individuals would be summarily denied asylum through the “credible fear” process, and then only eligible for Withholding of Removal or relief under the Convention Against Torture; the latter forms of relief much less appealing and much more difficult to obtain.

The Northern District of California temporarily blocked the implementation of the rule, noting that the plaintiffs were likely to succeed on the merits.  And indeed that appears the case.  There seems no good reason to provide Chevron deference to this rule when clearly contrary to the express will of Congress as provided in statute.  According to the Northern District of California:

separately from the question of admissibility, Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter. Prior to IIRIRA, asylum was potentially available to “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status.” 8 U.S.C. §1158(a) (1980). In IIRIRA, Congress amended §1158(a) to provide 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 in accordance” with §1158 and §1225(b). 8 U.S.C. § 1158(a) (emphasis added).

Also, as the Northern District of California pointed out, not only does the rule flout the explicit language of the statute, it also represents an “extreme departure from prior practice” and is contrary to the 1967 United Nations Protocol to which the United States acceded in 1968.
Decided October 16, 2018
This is a decision seeking to resolve a jurisdictional issue about when an individual in removal proceedings initially determined to be an unaccompanied minor by the Department of Homeland Security files an asylum application first with USCIS after turning 18 years of age. When there has been no affirmative act to terminate that status, in many parts of the country, USCIS offices have continued to adjudicate the applications of individuals initially determined to be unaccompanied minors, but who filed their asylum application after turning 18 years old.  However, this case clarifies that the Immigration Judge may claim initial jurisdiction over such a case, refuse to continue the case to permit USCIS to decide the asylum application, and require the individual to file an asylum application defensively in court.   According to the Board of Immigration Appeals:
While section 208(b)(3)(C) of the Act limits an Immigration Judge’s jurisdiction over an asylum application filed by a UAC, the statute does not prevent the Immigration Judge from determining whether initial jurisdiction over an application filed by an alien who has turned 18 lies with the Immigration Judge or the USCIS.
Important takeaway:  While the holding in this case was limited in scope, the BIA left open the possibility that since age is not the only way an adjudicator could find that an applicant no longer meets the definition of an unaccompanied minor,  if the child is released from custody to a parent or legal guardian and does not file for asylum until after release from custody, an immigration judge could also find that the individual does not meet the definition of a unaccompanied minor for purposes of determining whether USCIS retains initial jurisdiction over the asylum application.