{"slug":"asylum-ban-proclamation-2018","title":"2018 Asylum Ban: Proclamation 9822 Bars Asylum for Anyone Crossing Between Ports of Entry","date":"2018-11-09","lastUpdated":"2026-10-04","description":"On November 9, 2018, President Trump issued Proclamation 9822 suspending entry across the southern border except at ports of entry, and the Justice Department and DHS issued an interim final rule the same day making anyone who entered in violation of such a proclamation ineligible for asylum. Federal law says a person may apply for asylum 'whether or not at a designated port of arrival.' The courts blocked the rule: the Ninth Circuit refused the government a stay in December 2018, the Supreme Court denied a stay, and in February 2020 the Ninth Circuit affirmed the injunction, holding the rule conflicted with the asylum statute and with US obligations under the Refugee Convention and Protocol.","summary":"The administration tried to strip asylum eligibility from everyone who crossed the southern border between official crossing points, despite a statute that expressly allows them to apply. The courts blocked it, and the Ninth Circuit found it 'effectively a categorical ban' contrary to US law and refugee-treaty commitments.","category":"deportation","severity":"severe","ongoing":false,"sources":[{"url":"https://www.federalregister.gov/documents/full_text/html/2018/11/15/2018-25117.html","title":"Proclamation 9822: Addressing Mass Migration Through the Southern Border of the United States","publisher":"Federal Register"},{"url":"https://www.federalregister.gov/documents/full_text/html/2018/11/09/2018-24594.html","title":"Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims (interim final rule, 83 FR 55934)","publisher":"Federal Register"},{"url":"https://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/07/18-17274.pdf","title":"East Bay Sanctuary Covenant v. Trump, No. 18-17274 (9th Cir. Dec. 7, 2018) (order denying stay)","publisher":"US Court of Appeals for the Ninth Circuit"},{"url":"https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/28/18-17274.pdf","title":"East Bay Sanctuary Covenant v. Trump, No. 18-17274 (9th Cir. Feb. 28, 2020)","publisher":"US Court of Appeals for the Ninth Circuit"}],"draft":false,"status":"published","tags":["asylum","asylum ban","Proclamation 9822","southern border","Refugee Convention","East Bay Sanctuary Covenant v. Trump","first term"],"relatedEntries":["matter-of-a-b-domestic-violence-gang-asylum-2018","asylum-ban-executive-order","family-separation-zero-tolerance","remain-in-mexico-reimposition"],"timeline":[{"date":"2018-11-09","title":"Proclamation and interim final rule issued","summary":"Trump signs Proclamation 9822; DOJ and DHS publish the interim final rule making entrants in violation of a southern-border proclamation ineligible for asylum (Federal Register)."},{"date":"2018-12-07","title":"Ninth Circuit denies the government a stay","summary":"A Ninth Circuit motions panel denies the government's emergency motion to stay the district court's temporary restraining order, finding the rule not likely consistent with 8 U.S.C. §1158(a)(1)."},{"date":"2020-02-28","title":"Ninth Circuit affirms the injunction","summary":"The Ninth Circuit affirms the temporary restraining order and preliminary injunction, holding the rule conflicts with the asylum statute, is arbitrary and capricious, and is unreasonable in light of the Refugee Convention and Protocol."}],"location":{"name":"US–Mexico border"},"custom":{"era":"first-term","posture":"judicial-finding","internationalLaw":[{"statute":"1967 Protocol relating to the Status of Refugees (incorporating 1951 Convention Arts. 2–34)","article":"Article 31(1)","provision":"States 'shall not impose penalties' on refugees on account of their illegal entry or presence. The United States is a party to the Protocol."},{"statute":"1967 Protocol relating to the Status of Refugees (incorporating 1951 Convention Arts. 2–34)","article":"Article 33(1)","provision":"Non-refoulement: no return of a refugee to territories where life or freedom would be threatened"},{"statute":"Convention against Torture","article":"Article 3","provision":"No return to a risk of torture (the rule preserved CAT screening under a higher 'reasonable fear' standard)"}],"iccRelevance":false,"victims":"Asylum seekers crossing the US–Mexico border between ports of entry, who would have been barred from asylum and screened under a higher standard. Because the rule was blocked by the courts within weeks of issuance, the sources fetched do not establish how many people were actually denied asylum under it.","perpetrators":"President Donald Trump (Proclamation 9822); Attorney General Jeff Sessions and DHS Secretary Kirstjen Nielsen (signed the interim final rule on November 6 and 5, 2018); Acting Attorney General Matthew Whitaker (named defendant after Sessions's departure)","structuredPerpetrators":[{"name":"Donald Trump","role":"Issued Proclamation 9822","institution":"White House"},{"name":"Department of Justice and Department of Homeland Security","role":"Issued the interim final rule (83 FR 55934)","institution":"DOJ / DHS"}],"keyPoints":["Proclamation 9822 (November 9, 2018) suspended 'entry of any alien into the United States across the international boundary between the United States and Mexico,' except 'any alien who enters the United States at a port of entry and properly presents for inspection,' for 90 days (Federal Register).","The joint DOJ/DHS interim final rule (83 FR 55934) made people who enter in violation of such a proclamation 'ineligible for asylum,' and moved them to a higher 'reasonable fear' screening for withholding of removal and CAT protection (Federal Register).","8 U.S.C. §1158(a)(1) says any noncitizen physically present or arriving in the US, 'whether or not at a designated port of arrival,' may apply for asylum (Ninth Circuit).","On December 7, 2018 a Ninth Circuit motions panel (Bybee, Hurwitz; Leavy dissenting in part) refused to stay the district court's restraining order, calling it 'the hollowest of rights' to be allowed to apply for asylum if another rule makes one 'categorically ineligible' for using that route. The government's application to the Supreme Court for a stay was also denied (Ninth Circuit, 2020).","On February 28, 2020 the Ninth Circuit (Paez, W. Fletcher, Fernandez) affirmed the injunction, holding the rule 'is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress' and runs afoul of the Refugee Convention's rules on the right to seek asylum, penalties for irregular entry, and non-refoulement."],"searchAliases":["asylum ban 2018","Proclamation 9822","East Bay Sanctuary","entry between ports asylum ban"],"legalBasis":"8 U.S.C. §1182(f) (the authority invoked) and §1158(a)(1) and (b)(2)(C) (asylum); Administrative Procedure Act; assessed against 1951 Convention Articles 31(1) and 33(1) as incorporated by the 1967 Protocol.","postureNote":"The rule was enjoined before it could operate at scale. The Ninth Circuit held it likely unlawful at the stay stage (2018) and affirmed the preliminary injunction on the merits of likelihood of success (2020). The Supreme Court denied a stay. These are preliminary-injunction rulings, not final judgments, but they are appellate findings on the rule's conflict with the statute. A separate 2019 third-country transit rule is not covered here.","relatedIncidents":["matter-of-a-b-domestic-violence-gang-asylum-2018","asylum-ban-executive-order","family-separation-zero-tolerance","remain-in-mexico-reimposition"]}}