Hogan Lovells represents nonprofit organizations challenging new rule barring asylum eligibility for many migrants

Press releases | 16 July 2019

Washington, D.C., 16 July 2019 – Hogan Lovells filed a pro bono lawsuit this evening seeking relief from a sweeping new federal rule that bars asylum eligibility for individuals and families entering the United States unless they have first sought protection in a third country through which they have travelled.

The rule "radically rewrites" the laws governing asylum eligibility, states the complaint brought on behalf of the Capital Area Immigrants' Rights Coalition (CAIR Coalition) and Refugee and Immigrant Center for Education and Legal Services (RAICES), two nonprofit organizations that provide legal assistance to migrants fleeing persecution.

"The Rule would strip asylum eligibility from many of those who need it most: migrants fleeing horrific situations in their home countries, which are some of the most dangerous places in the world," said Hogan Lovells Partner Neal Katyal. "Under U.S. law, people who enter or seek to enter the Unites States have the right to be considered for asylum, and this lawsuit seeks to protect and preserve this crucial right."

The interim final rule, titled "Asylum Eligibility and Procedural Modifications" (Rule), issued on July 16 by the U.S. Executive Office for Immigration Review, Department of Justice and other agencies, attempts to create a third-country exception to the presumption of asylum eligibility for those in the United States under the Immigration and Nationality Act (INA).

"We brought this action because there is an urgent need to protect those who will be hurt the most by this drastic change in the asylum process," said Claudia Cubas, Litigation Director of CAIR Coalition. "Migrants fleeing to the United States are often running from life-or-death situations, leaving behind all they have to make a dangerous journey."

Under existing federal law, consistent with the United States' international legal obligations, individuals fleeing persecution and violence are entitled to pursue legal protection in the United States. The INA creates exceptions where the United States has agreements with "safe" third countries (such as Canada) or where applicants are firmly resettled in a third country.

But the new Rule deems individuals who enter or attempt to enter the United States after transiting through another country "ineligible for asylum" unless they sought and were denied protection elsewhere. The effect is to create a significantly higher burden for individuals seeking asylum, and to bar the overwhelming majority of asylum-seekers from obtaining protection in this country.

"Regardless of where they began their journey, many of the individuals entering our southern border have legitimate claims for asylum in the United States," said Jonathan Ryan, Executive Director of RAICES. "This Rule creates yet another barrier to the right to seek protection that is guaranteed under both federal and international law."

The complaint, filed in the United States District Court for the District of Columbia, argues that the attempt to deny asylum under the Rule violates the INA and the Constitution, as well as the Administrative Procedures Act because it was issued without the required notice and comment procedures. The plaintiffs seek a temporary restraining order and preliminary injunction to stop the Rule from being implemented.

The Hogan Lovells team representing the plaintiffs is led by Neal Katyal, T. Clark Weymouth, Craig Hoover, Justin Bernick, Mitchell Reich, Thomas Schmidt, Elizabeth Hagerty, Kaitlin Welborn, and Mohan Warusha Hennadige.

Hogan Lovells has represented clients in a number of previous matters involving asylum claims and the migrant crisis at the southern border of the United States.

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