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Limit on Asylum for Southern Border Entrants

The Trump administration has enacted yet another restriction on asylum seekers in the United States. As of July 16, 2019, any person who enters the United States through the Mexican land border is barred from seeking asylum if they did not request asylum in any of the countries they transited through (including Mexico). 8 C.F.R. § 208.13(c)(4). This is a wide-sweeping measure that has profound significance for many asylum seekers, many of whom travel through South America to come to the United States to apply for asylum.

Although this ban is devastating for many people, there are several things to keep in mind. First, it only applies to people who entered the United States through the southern border, not those who came into the United States in any other way. Second, this ban is a regulation rather than a statute, meaning that the rule will be easier to change under a new administration. Indeed, given how controversial this rule is one would expect it to change under a Democrat administration, although that remains to be seen. Third, there are a couple small exceptions to this rule. Persons who applied for asylum on their way to the United States and were denied, or persons who are victims of severe forms of trafficking, both may apply for asylum anyway. Fourth, although a person who is banned by this rule cannot get asylum, they can get related forms of relief including withholding of removal and relief under the Convention Against Torture. These forms of relief prohibit the United States from sending a person back into harm's way, but they are a bit more difficult to obtain than asylum due to higher standards of proof. Fifth and finally, the ban is being challenged in the court system, and it will possibly be overturned. Thus, although the ban is serious, asylum is certainly alive and well as a form of protection from persecution.

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