The question presented is whether aliens who are originally placed in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States.
The unfortunate reality is that many countries marginalize women as second-class citizens. Sometimes this occurs through laws that grant men and women different rights, and in other instances religion or long-established cultural traditions relegate women to inferior social statuses. Where a society institutionalizes laws that permit violence against women or holds women and men in unequal standing, there is no reason why gender or sex should not align with the definition of a “refugee” and be treated as tantamount to the broad, protected classes of race, religion, and political opinion.
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).
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.