Bar Exams in the Pandemic JURIST Digital Scholars
Appeals court rules refugees need not be denied asylum in Mexico before applying in US
WikiImages / Pixabay
Appeals court rules refugees need not be denied asylum in Mexico before applying in US

The US Court of Appeals for the Ninth Circuit ruled Monday that refugees do not have to apply for and be denied asylum in Mexico before they can apply for asylum in the US. This decision struck down a rule by the Trump administration that requires refugees to apply for asylum in countries they travel through on their way to the US.

In 2019, the Department of Justice (DOJ) and Department of Homeland Security (DHS) created a joint interim final rule, entitled “Asylum Eligibility and Procedural Modifications,” which generally required refugees to apply for and be denied asylum in countries through which they travel on their way to the US.

The lower court initially granted a preliminary injunction against enforcement of the rule in the four states along the United States-Mexico Border. This preliminary injunction was stayed by the Supreme Court, pending the disposition of the appeals court.

The Court of Appeals for the Ninth Circuit found that the plaintiffs, who were nonprofit organizations representing asylum seekers, had standing because the rule diverted the plaintiffs’ resources from other sources and the plaintiffs would lose significant funding because of the rule.

The court held that the rule was unlawful under the Administrative Procedures Act (APA) because the rule was inconsistent with 8 U.S.C. § 1158, which allows a refugee who is physically present in the US to apply for asylum.

The court also concluded that the rule was arbitrary and capricious because evidence indicated that refugees may not have safe options in Mexico, and the agencies did almost nothing to ensure that these other countries would be a safe option for refugees. The agencies also did not justify their assumption that an alien who did not apply for and receive asylum in another country was not likely to have a “meritorious asylum claim.” The rule would also adversely impact any unaccompanied minors seeking asylum.

Because of this, the court affirmed the preliminary injunction. The US District Court for the District of Columbia also struck down this rule on June 30.