2018 Asylum Ban: Proclamation 9822 Bars Asylum for Anyone Crossing Between Ports of Entry

What happened

On November 9, 2018, President Trump issued Proclamation 9822, "Addressing Mass Migration Through the Southern Border of the United States." Invoking 8 U.S.C. §1182(f), it suspended "entry of any alien into the United States across the international boundary between the United States and Mexico," except for "any alien who enters the United States at a port of entry and properly presents for inspection," for 90 days. It said that "an average of approximately 2,000 inadmissible aliens" had entered each day in recent weeks and that large groups who crossed between ports of entry "avoid orderly processing" (Federal Register).

The same day, the Justice Department and DHS published an interim final rule (83 FR 55934) providing that people "subject to such a proclamation concerning the southern border, but who contravene such a proclamation by entering the United States after the effective date of such a proclamation, are ineligible for asylum." People caught by the bar would be screened under the higher "reasonable fear" standard for withholding of removal and Convention Against Torture protection only (Federal Register).

The asylum statute says the opposite. Under 8 U.S.C. §1158(a)(1), any noncitizen "who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien's status, may apply for asylum."

Legal-services organisations sued. The district court restrained the rule. On December 7, 2018 a Ninth Circuit motions panel refused to stay that order, concluding that the rule "is not likely to be found in accordance with" §1158(a)(1) and that "it is the hollowest of rights that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact" (court summary). The government asked the Supreme Court for a stay, which was denied. On February 28, 2020 a merits panel affirmed the injunction.

Legal analysis

Statutory conflict (adjudicated). The Ninth Circuit held in 2020 that "because the Rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum, it is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in § 1158(a)," and that even if the statute were ambiguous the rule would be arbitrary and capricious.

Refugee-treaty obligations (adjudicated as a factor). The court also found the rule "unreasonable in light of the United States's treaty obligations," concluding that it "runs afoul of three codified rules: 1) the right to seek asylum; 2) the prohibition against penalties for irregular entry; and 3) principles of non-refoulement." On Article 31(1), the court reasoned that "the Rule imposes an additional penalty on refugees because of their 'illegal entry' by risking the deportation of migrants who enter the country at a land border," and that categorically denying asylum based on method of entry "is also in tension with the United States's commitment to avoid refouling individuals."

Element by element (as an IHRL/treaty violation).

• State act: met. A presidential proclamation and a binding agency rule.
• Conflict with a protected right: met, as found by an appellate court (statutory right to apply; Protocol Arts. 31(1) and 33(1)).
• Concrete harm to identifiable people: partly shown. The rule targeted an identifiable class, but it was restrained by the district court within weeks of issuance, so the sources fetched do not show how many people were denied protection under it.

Not an international crime. Article 7(1)(d) "deportation" requires removal without grounds permitted under international law as part of a widespread or systematic attack on a civilian population. A rule blocked by the courts before large-scale application is not shown to meet that threshold.

Strongest defence argument. Section 1182(f) gives the President broad power to suspend entry, and §1158(b)(2)(C) lets the Attorney General add conditions on asylum eligibility. The rule preserved withholding of removal and CAT protection, so it did not itself require return to persecution. The Ninth Circuit rejected the argument because the added condition must be "consistent" with §1158, and a condition that nullifies the statute's express permission to apply regardless of port of arrival is not. Judge Leavy dissented in part at the stay stage.

Why this grade

Severe. The rubric's severe grade covers "punitive actions against asylum seekers or refugees in contravention of treaty obligations." Federal appellate courts found exactly that conflict here, including with Article 31's ban on penalising irregular entry. The grade is not critical because the rule was a single measure that the courts blocked before it could operate at scale; together with Matter of A-B- and later measures, it forms part of a broader pattern recorded in related entries. No international crime is plausibly in play, so no evidence classification is assigned.