PUBLISHED:August 02, 2020

Immigrant Rights Clinic comments on proposed federal rule narrowing asylum protections


The comment, submitted July 15, argues that the proposed regulation all but guarantees the demise of asylum in the U.S.

Duke Law School's Immigrant Rights Clinic filed a public comment July 15 opposing a proposed federal rule that would dramatically narrow protections for individuals seeking asylum in the United States.

The proposed rule would bar asylum for virtually all individuals who, among other things, transit through more than one country on their way to the U.S., spend more than fourteen days in any third country before arriving here, or enter the U.S. outside of a port of entry. The clinic joined a nationwide effort opposing the regulation as inconsistent with the country’s international treaty obligations as well the U.S. Refugee Act. More than 300,000 individuals are currently seeking asylum in the U.S.

The clinic’s comment, co-authored by Senior Lecturing Fellow Shane Ellison and Clinical Professor Kate Evans,  argues that “[i]n their combination, [the rule’s new] ‘discretionary factors’ … create a reticulated series of additional restrictions that effectively eliminate asylum protection,” and are actually new asylum bars falsely dressed in the garb of “discretion.” They contend that the proposed rule would radically restrict the scope of asylum in a manner that cannot be reconciled with clear congressional intent as expressed in the Refugee Act.

“Congress carefully defined eligibility and created a series of detailed and circumscribed grounds of ineligibility,” they write. The proposal “both interferes and conflicts with the statute’s framework by creating far-reaching disqualifying provisions that would bar … bona fide refugees.

“[T]he Rule … represents a breathtaking departure from nearly four decades of Agency interpretation and practice related to discretionary asylum adjudications,” they write, calling upon the government to “consider … the significant reliance interests involved.” 

The comment concludes by demanding that the government provide data on how broadly the rule would disqualify past bona fide asylees to demonstrate how the proposal flips asylum eligibility on its head in direct contravention of Congress’s design.

More than 86,000 comments on the proposed asylum rule were submitted. A copy of the clinic’s comment can be viewed here.