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19-16487

d
IN THE

United States Court of Appeals
FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT; AL OTRO LADO; INNOVATION LAW LAB;
CENTRAL AMERICAN RESOURCE CENTER,
—v.—

Plaintiffs-Appellees,

WILLIAM P. BARR, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE;
JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his
official capacity; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; KEVIN K.
MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S.
DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Acting
Director of the U.S. Citizenship and Immigration Services, in his official capacity;
JOHN P. SANDERS, Acting Commissioner of U.S. Customs and Border Protection, in
his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
U.S. CUSTOMS AND BORDER PROTECTION; MATTHEW ALBENCE, Acting Director
of Immigration and Customs Enforcement, in his official capacity; IMMIGRATION
AND CUSTOMS ENFORCEMENT,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO

BRIEF FOR AMICUS CURIAE NATIONAL CIS COUNCIL 119
IN SUPPORT OF APPELLEES

MUHAMMAD U. FARIDI
STEPHANIE TEPLIN
A. ROBERT QUIRK
PATTERSON BELKNAP WEBB
& TYLER LLP
1133 Avenue of the Americas
New York, New York 10036
(212) 336-2000
Attorneys for Appellees

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RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae
hereby certify that they have no parent corporations and that no publicly held
company owns 10% or more of their stock.

i

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TABLE OF CONTENTS
Page
RULE 26.1 CORPORATE DISCLOSURE STATEMENT.......................................i
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICUS CURIAE............................................................................ 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 7
I.

THE THIRD COUNTRY TRANSIT BAR IS NOT THE
APPROPRIATE MECHANISM TO DEAL WITH THE FLOW OF
MIGRANTS AT OUR SOUTHERN BORDER ............................................. 7

II.

THE THIRD COUNTRY TRANSIT BAR IS INCONSISTENT
WITH OUR ASYLUM LAW ....................................................................... 11

III.

THE APPLICATION OF THE THIRD COUNTRY TRANSIT BAR
IS CONTRARY TO OUR LONGSTANDING ASYLUM
FRAMEWORK AND IT YIELDS ABSURD RESULTS ............................17

CONCLUSION ........................................................................................................22

ii

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TABLE OF AUTHORITIES
Page(s)
Cases
Boutilier v. INS,
387 U.S. 118 (1967) ......................................................................................10, 11
Fiallo v. Bell,
430 U.S. 787 (1977) ............................................................................................11
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................11
Statutes
8 U.S.C. § 1158(a)(1) ............................................................................................... 11
8 U.S.C. § 1158(a)(2) ............................................................................................... 11
8 U.S.C. § 1158(a)(2)(A) ...................................................................................13, 14
8 U.S.C. § 1158(a)(2)(E)..........................................................................................14
8 U.S.C. § 1158(b)(2)(A) ......................................................................................... 12
8 U.S.C. § 1158(b)(2)(C) ......................................................................................... 13
8 U.S.C. § 1158(b)(1)(B) ......................................................................................... 17
8 U.S.C. § 1225(b)(1)(B)(iii) .............................................................................10, 18
8 U.S.C. § 1225(b)(1)(B)(iii)(II)-(III) ......................................................................19
Displaced Persons Act of 1948, ch. 647, Pub. L. No. 80-774, 62 Stat.
1009....................................................................................................................... 8
Refugee-Escapee Act of 1957, Pub. L. No. 85-316, 71 Stat. 639 ............................. 8
Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400 ................................. 8

iii

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Regulations
8 C.F.R. § 208.1(b) (1990) ....................................................................................... 10
8 C.F.R. § 208.13(c)(3) ............................................................................................20
8 C.F.R. § 208.30 ..................................................................................................... 17
8 C.F.R. § 208.30(e)(2)-(3) ......................................................................................21
8 C.F.R. § 208.30(e)(5) (2018) ................................................................................18
8 C.F.R. § 208.30(e)(5)(i) ........................................................................................18
8 C.F.R. § 208.30(e)(5)(ii) ...........................................................................19, 20, 21
8 C.F.R. § 208.30(f) ................................................................................................. 18
8 C.F.R. § 208.30(g) ................................................................................................18
Fed R. App. P. 29(a)(2) .............................................................................................. 1
Fed. R. App. P. 29(a)(4)(e) ........................................................................................ 1
Other Authorities
1951 Convention Relating to the Status of Refugees Preamble, July
28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137. ..............................................11, 12
Amnesty International, Overlooked, Under-Protected: Mexico’s
Deadly Refoulement of Central Americans Seeking Asylum (2018),
available at https://www.amnestyusa.org/ ..........................................................15
Gregg A. Beyer, Reforming Affirmative Asylum Processing in the
United States: Challenges and Opportunities, 9 Am. U. Int’l L.
Rev. ....................................................................................................................... 9
Carl J. Bon Tempo, Americans at the Gate: The United States and
Refugees During the Cold War 70-73 (2008) ....................................................... 8
William Bradford, Of Plymouth Plantation (Harold Paget ed. 2006) ....................... 2
iv

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Doctors Without Borders, Forced to Flee Central America’s Northern
Triangle: A Neglected Humanitarian Crisis 5 (2017) ........................................15
President Dwight D. Eisenhower, Special Message to the Congress
Recommending Amendments to the Refugee Relief Act, May 27,
1955....................................................................................................................... 8
Fed. R. App. P. 29(a)(2) ............................................................................................. 1
Fed. R. App. P. 29(a)(4)(e) ........................................................................................ 1
Mark Gibney, Global Refugee Crisis 91-92 (2d ed. 2010)........................................ 9
María-Teresa Gil-Bazo, The Safe Third Country Concept in Int’l
Agreements on Refugee Protection, 33/1, Netherlands Quarterly of
Human Rights 42 (2015)...............................................................................11, 13
Steven Greenhouse, U.S. Moves to Halt Abuses in Political Asylum
Program, N.Y. Times (Dec. 3, 1994) ................................................................. 10
David W. Haines, Safe Haven?: A History of Refugees in America 4
(2010) ..................................................................................................................10
Human Rights First, Is Guatemala Safe for Refugees and Asylum
Seekers? (June 2019) ..........................................................................................16
Human Rights First, Is Mexico Safe for Refugees and Asylum
Seekers? (2018)................................................................................................... 16
Gil Loescher & John A. Scanlan, Calculated Kindness: Refugees and
America’s Half-Open Door 1945-Present 4-6 (1986).......................................... 8
Refugees, Universal Periodic Review, Mexico (2018) ......................................16, 17
United Nations High Commissioner for Refugees, Universal Periodic
Review, Mexico (2018) ....................................................................................... 15
U.S. Dep’t of Justice, Office of Immigration Review, Guidelines
Regarding New Regulations Governing Asylum and Protection
Claims (July 15, 2019) ............................................................................19, 20, 21
v

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
U.S. Dep’t of State, Guatemala 2018 Human Rights Report .................................... 6
U.S. Dep’t of State, Mexico 2018 Human Rights Report ............................14, 15, 16
U.S. Citizenship and Immigration Services, Credible Fear FAQ ........................... 19
U.S. Citizenship and Immigration Services, Refugee Timeline ............................. 8, 9

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INTEREST OF AMICUS CURIAE1
The National Citizenship and Immigration Services Council 119 is a labor
organization that represents over 13,500 bargaining unit employees of the United
States Department of Homeland Security’s U.S. Citizenship and Immigration
Services (“USCIS”). Council 119’s constituents include approximately seven
hundred asylum officers and refugee officers—the men and women who are tasked
with implementing the joint interim final rule promulgated by the Department of
Justice (the “DOJ”) and the Department of Homeland Security (“DHS”) on July
26, 2019, entitled “Asylum Eligibility and Procedural Modifications,” which is the
subject of this litigation. The rule, which is also referred to as the “Third Country
Transit Bar,” categorically denies asylum to almost anyone crossing into the
United States through the southern border without first having applied for and been
denied asylum in any country through which she transited. The Third Country
Transit Bar, in effect, eliminates asylum for virtually every asylum seeker—except
for Mexican nationals—who enters through the southern border.
Amicus curiae has a special interest in this case for several reasons. First,
Council 119’s members have first-hand knowledge as to whether the Third
1

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e), amicus curiae
certifies that this brief was not written in whole or in part by counsel for any party,
and no person or entity other than amicus curiae and its counsel has made a
monetary contribution to the preparation and submission of this brief. The parties
have consented to the filing of this amicus brief. See Fed. R. App. 29(a)(2).

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Country Transit Bar is necessary to deal with the flow of refugees at our southern
border and whether it is consistent with our nation’s asylum laws. Second, the
Third Country Transit Bar requires Council 119’s members to find in “crediblefear” screenings, which they conduct pursuant to federal asylum law, that asylum
seekers do not have a credible fear of persecution if they had not applied for and
been denied asylum in a third country that they transited through to reach our
southern border. Lastly, the Third Country Transit Bar requires Council 119’s
members to deny asylum relief in the “affirmative asylum” context if the asylum
seeker who has entered the United States through the southern border does not
demonstrate that she applied for and was denied asylum in a third country.
This brief relies solely upon information that is publicly available, and it
does not rely on any information that is confidential, law enforcement sensitive, or
classified. It represents only the views of Council 119 on behalf of the bargaining
unit, and does not represent the views of USCIS or USCIS employees in their
official capacities.
SUMMARY OF ARGUMENT
The provision of a safe haven to persecuted people is etched into our
nation’s identity. Indeed, the country’s roots sprouted from the Pilgrims who came

2

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to America after fleeing religious persecution in Europe.2 Like many refugees, the
Pilgrims passed through a third country before arriving in a place where they could
firmly and safely resettle. Four hundred years later, the promise of safety and an
opportunity to build a permanent life without persecution remains a part of our
nation’s fabric. This identity is reinforced by our nation’s laws, which establish a
permanent, standardized, and agile system for identifying, vetting, and resettling
refugees. That system provides the tools for addressing an increase in asylum
seekers—no matter how large—at our borders, including those who transited
through a third country before arriving at the U.S. border.
Recent years have seen an influx of migrants at our southern border,
primarily from the Northern Triangle countries of Guatemala, Honduras, and El
Salvador, as well as migrants from many other countries who arrive after passing
through Central America and Mexico. Many seek asylum in the United States
after having fled persecution in their home countries—just like the generations of
refugees that our nation has welcomed throughout its history. Yet rather than
leveraging the existing refugee protection framework with the necessary human
and financial resources to address this surge in migration, the Administration has
labeled the arrival of refugees a “crisis” warranting drastic solutions that run
contrary to our tradition of protecting the persecuted. In the end, the “solutions”
2

See William Bradford, Of Plymouth Plantation (Harold Paget ed. 2006).
3

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that the Administration has implemented do not advance the stated goals but have
the opposite effect of making the system more inhumane, chaotic, and inefficient.
The Third Country Transit Bar is the most inhumane and counterproductive
measure yet. It is designed to slam the asylum door shut on virtually all
refugees—including unaccompanied minors—entering the United States through
our nation’s southern border. It does so by proclaiming that these individuals are
ineligible for asylum in the United States unless they demonstrate that they applied
for and were denied asylum in a third country through which they transited en
route to our southern border, no matter how serious the persecution they faced in
their home country or in the third country.
The bar is implemented, in part, by a DOJ and DHS directive requiring
asylum officers to make a “negative credible-fear finding” during the initial
screening interview for an asylum seeker detained at the southern border if the
individual cannot demonstrate that she applied for and was denied asylum in a
third country that she transited through to reach our southern border. In other
words, even if the asylum seeker establishes that she credibly fears persecution
based on a protected characteristic or membership in a protected class in her home
country and each third country that she transited through to reach our southern
border, the Third Country Transit Bar requires the asylum officer to find that she

4

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did not in fact establish a credible fear of persecution because she had not applied
for and been denied asylum in a third country.3
This newly created basis for denying asylum is fundamentally contrary to
our immigration laws. Specifically, Congress—and not the executive branch—has
the right to determine whether an individual or group of individuals can be
categorically prohibited from obtaining asylum in our country. Congress has set
forth specific exceptions to asylum protection in the United States, including
exceptions governing the circumstances where the potential availability of asylum
in a third country may preclude someone from obtaining asylum in the United
States. While Congress has delegated some authority to the executive branch to
establish additional limitations on asylum, it has also decreed that those conditions
must be “consistent” with our asylum law.
But the Third Country Transit Bar is not consistent with our asylum law. It
is contrary to the two narrow circumstances that Congress has determined should
lead to asylum ineligibility based on the potential for asylum in a third country:
the “safe third country” bar and the “firm resettlement” bar. For the “safe third

3

The directive also directs asylum officers to deny asylum relief in the
“affirmative asylum” process—which involves adjudication of asylum applications
by individuals who are not in removal proceedings and who file Form I-589 with
the USCIS—to those individuals who entered the United States through the
southern border but cannot establish that they applied for and were denied asylum
in a third country that they transited through to reach the United States.
5

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country” bar to be applicable, there must be a determination that an asylum
seeker’s life or freedom would not be threatened in the third country and that she
would have access to a full and fair procedure for determining her asylum claim
there. It cannot be credibly disputed that neither Mexico nor Guatemala—the third
countries that a substantial majority of asylum seekers transit through to reach our
border—qualify as safe third countries under the statutory exception. And the
“firm resettlement” bar requires a careful consideration of the asylum seeker’s
specific ties to the third country—which must be more than the mere fact that she
transited through it to reach our southern border. These narrow statutory
exceptions to asylum eligibility carefully calibrate our nation’s tradition of
providing a safe haven to the persecuted while sharing the burdens of providing
asylum with other countries that have the ability and means to ensure that asylum
seekers will not face persecution. The Third Country Transit Bar runs afoul of the
balance that Congress has struck.
The Third Country Transit Bar’s conflict with federal asylum law is
demonstrated by the absurd and unreasonable results that it yields. Under the new
regime, for example, a war criminal who is statutorily barred from obtaining
asylum relief could pass a credible fear screening if he demonstrates that he
applied for and was denied asylum in a third country (perhaps because he is a war
criminal), but an individual who demonstrates that she faces persecution based on a
6

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protected class in her home country and the third countries that she transited
through would fail the screening if she does not demonstrate that she applied for
and was denied asylum in a third country. A rule that allows for these types of
absurd results that defy the purpose and framework of our asylum system cannot
be said to have any reasonable basis.
When Council 119’s members enlisted to become asylum officers, they took
a solemn oath to uphold the Constitution and the laws of the United States. They
have been specifically charged with furthering our country’s tradition of fulfilling
its moral and legal obligations to protect those who were persecuted on the basis of
a protected class. They did not sign up to carry out a policy that defies our nation’s
asylum laws and that rips at the moral fabric of our country.
ARGUMENT
I.

THE THIRD COUNTRY TRANSIT BAR IS NOT THE
APPROPRIATE MECHANISM TO DEAL WITH THE FLOW
OF MIGRANTS AT OUR SOUTHERN BORDER
The Administration contends that the Third Country Transit Bar is necessary

to deal with the dramatic increase in the number of asylum seekers encountered at
the southern border who do not have a valid claim to asylum but who strain the
resources of our system. But the flow of migrants could be addressed through
other means that are consistent with our longstanding tradition of providing a safe
haven to the persecuted and that are consistent with our nation’s laws.
7

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Our nation has faced influxes of refugees many times before. For instance,
immediately after the Second World War, the United States admitted nearly 40,000
survivors of the Holocaust and over half million displaced persons and escapees
from Communist-dominated countries.4 Later, in 1956, the United States
permitted entry of over 30,000 refugees fleeing persecution in Hungary.5 And in
1957, it allowed for the resettlement of “refugee-escapees,” defined as persons
fleeing persecution in Communist or Middle Eastern countries.6 Our country
processed these people by, among other things, “setting up a complex
organization” that vetted them before they entered the country.7
The process continued to adapt as new refugee crises emerged. After the
Cuban Revolution in 1959, the United States admitted more than 58,000 Cubans
fleeing persecution.8 And in 1965, President Lyndon B. Johnson opened the

4

See Gil Loescher & John A. Scanlan, Calculated Kindness: Refugees and
America’s Half-Open Door 1945-Present 4-6 (1986); Displaced Persons Act of
1948, ch. 647, Pub. L. No. 80-774, 62 Stat. 1009; Refugee Relief Act of 1953, Pub.
L. No. 83-203, 67 Stat. 400.
5

Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees
During the Cold War 70-73 (2008).
6

Refugee-Escapee Act of 1957, Pub. L. No. 85-316, 71 Stat. 639.

7

See President Dwight D. Eisenhower, Special Message to the Congress
Recommending Amendments to the Refugee Relief Act, May 27, 1955, available
at https://ilw.com/articles/2004,0105-eisenhower.shtm.
8

See U.S. Citizenship and Immigration Services, Refugee Timeline,
https://www.uscis.gov/history-and-genealogy/our-history/refugee-timeline.
8

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country to all Cubans seeking refuge from Fidel Castro’s communist regime.9 In
order to more safely and efficiently bring Cubans to the United States, the federal
government created an airlift program which brought more than 250,000 Cuban
refugees to the United States.10 And around the same time, our nation also
welcomed thousands fleeing persecution from the Soviet Union, Eastern Europe,
and Afghanistan.11
The end of the Vietnam War created a large flow of refugees, with about
300,000 Southeast Asians entering the United States between 1975 and 1980. The
Indochinese Immigration and Refugee Act of 1975 funded their transportation and
resettlement, and, in 1977, Congress enacted a law allowing Southeast Asian
refugees who had entered the United States the opportunity to become lawful
permanent residents.12 In 1977, the Immigration and Naturalization Services
(“INS”) also created a special Office of Refugee and Parole to address global
refugee crises and implement refugee policies.13

9

Id.

10

Id. Later, in 1980, after the Castro regime announced that all Cubans wishing to
go to the United States were free to board boats at the Port of Mariel, the United
States allowed around 125,000 Cubans to enter the country under the Attorney
General’s parole authority. Id.
11

Mark Gibney, Global Refugee Crisis 91-92 (2d ed. 2010).

12

Id.

13

Id.
9

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Then, in 1990, the INS established an Asylum Corps, which comprises
professional asylum officers trained in international law and with access to a center
containing information on human rights.14 This specialized training allows asylum
officers to more accurately and efficiently assess asylum claims. Recognizing the
value of this approach, Congress authorized funding to double the number of
asylum officers in 1994.15 The asylum program was further modified in 1995 and
again in 1996 to allow asylum officers to process expedited removal of persons
who cannot demonstrate a credible fear of persecution.16
Simply put, our country has dealt with the challenges posed by large swaths
of refugees seeking a safe haven here by promulgating highly adaptable processes
that effectively ensured protection to qualified asylum seekers while guarding
against abuse of the system by bad actors. The agility and success of the system is
perhaps best reflected in the sheer number of refugees absorbed into the United
States since the Second World War—nearly five million—and the mechanisms
that the country instituted to accommodate their arrival and processing.17

14

Gregg A. Beyer, Reforming Affirmative Asylum Processing in the United States:
Challenges and Opportunities, 9 Am. U. Int’l L. Rev. & Pol’y 43 (1994). See also
8 C.F.R. § 208.1(b) (1990).
15

Steven Greenhouse, U.S. Moves to Halt Abuses in Political Asylum Program,
N.Y. Times (Dec. 3, 1994), p. 8.
16

8 U.S.C. § 1225(b)(1)(B)(iii).

17

David W. Haines, Safe Haven?: A History of Refugees in America 4 (2010).
10

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II.

THE THIRD COUNTRY TRANSIT BAR IS INCONSISTENT
WITH OUR ASYLUM LAW
Subject to our nation’s international treaty obligations, Congress has

“plenary power” to make rules governing which group of aliens may be admitted
or excluded from the United States. Boutilier v. INS, 387 U.S. 118, 123 (1967);
INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987). “[O]ver no conceivable
subject is the legislative power of Congress more complete than it is over the
admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977).
Congress has decreed that an alien who is physically present in the United
States or who arrives in the United States may apply for asylum in the United
States, subject to specific and narrow exceptions. See 8 U.S.C. § 1158(a)(1). The
first set of exceptions is set forth in section 1158(a)(2) of Title 8 of the United
States Code, and they include, among others, the “safe third country” exception.
The “safe third country” exception has its roots in the Preamble to the 1951
Convention Related to the Status of Refugees (“1951 Convention”), which
acknowledges that “the grant of asylum may place unduly heavy burdens on
certain countries, and [that] a satisfactory solution . . . therefore cannot be achieved
without international co-operation.”18 The exception is designed to address “the
phenomenon of refugees and asylum seekers ‘who move in an irregular manner
18

1951 Convention Relating to the Status of Refugees Preamble, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 137.
11

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from countries in which they have already found protection, in order to seek
asylum or permanent resettlement elsewhere.’”19
The second set of exceptions is set forth in section 1158(b). That section
provides that “[t]he Secretary of the Homeland Security or the Attorney General
may grant asylum to an alien who has applied for asylum in accordance with the
requirements and procedures established” by them under this section. Section
1158(b)(2)(A) provides that “Paragraph (1) shall not apply to an alien if the
Attorney General determines that” an alien falls within six categories of
individuals specified within that section: (i) have engaged in persecution
themselves; (ii) were convicted of a serious crime in the United States;
(iii) committed a serious nonpolitical crime outside the United States; (iv) present a
danger to the security of the United States; (v) have engaged in terrorism or are
affiliated with a terrorist organization; or (vi) were firmly resettled in another
country prior to arriving in the United States. 8 U.S.C. § 1158(b)(2)(A). These
exceptions stem from the “exclusion” and “cessation” clauses of the 1951
Convention, which set forth circumstances in which individuals are either not

19

María-Teresa Gil-Bazo, The Safe Third Country Concept in International
Agreements on Refugee Protection, 33/1, Netherlands Quarterly of Human Rights
42 (2015) (emphasis added) (quoting the Executive Committee of the UNHCR’s
Conclusion No. 58(XL)).
12

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entitled to protection or no longer need protection.20 In addition to creating six
specific mandatory bars to asylum, Congress also delegated authority to the
Attorney General to “establish additional limitations and conditions consistent
with this section, under which an alien shall be ineligible for asylum under
paragraph (1).” 8 U.S.C. § 1158(b)(2)(C) (emphasis added).
The Third Country Transit Bar is not consistent with our asylum laws
because it runs afoul of the careful balance that Congress has struck in the “safe
third country” and “firm resettlement” exceptions, which govern the circumstances
in which the potential availability of asylum in a third country may bar that person
from obtaining asylum relief.
The “safe third country” exception. In the “safe third country” exception,
Congress carefully balanced the need to afford asylum to persecuted people against
the need to share that burden with other countries that are willing and able to
provide similar protection.21 Congress did so by decreeing that, for the “safe third
country” bar to apply, the Attorney General must “determine that the alien may be
removed, pursuant to a bilateral or multilateral agreement, to a country . . . . in
which the alien’s life or freedom would not be threatened on account of [a
20

See 1951 Convention Relating to the Status of Refugees arts. 1(E), 1(F), and
32(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137.
21

See María-Teresa Gil-Bazo, The Safe Third Country Concept in Int’l Agreements
on Refugee Protection, 33/1, Netherlands Quarterly of Human Rights 42 (2015).
13

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protected class], and where the alien would have access to a full and fair procedure
for determining a claim to asylum or equivalent temporary protection . . . .” 8
U.S.C. § 1158(a)(2)(A). The “safe third country” bar does not apply to
unaccompanied minors. See 8 U.S.C. § 1158(a)(2)(E).
But the Third Country Transit Bar applies to asylum seekers who do not
meet the specific criteria that Congress has required in the “safe third country”
exception. The Third Country Bar applies, for instance, to unaccompanied minors,
even though the “safe third country” exception does not apply to such individuals.
Moreover, the Third Country Transit Bar applies overwhelmingly to migrants from
the Northern Triangle who pass through Mexico (and in some cases, Guatemala) to
reach our southern border. However, neither country is safe for most refugees nor
provides a full and fair procedure for determining asylum claims.
As to Mexico, the U.S. Department of State recently noted that the same
gangs migrants flee to avoid persecution in their home countries continue to
threaten them in Mexico.22 According to an NGO report relied upon by the State
Department, 5,824 crimes were reported against migrants in just five Mexican
states, and only 1% of the reported crimes were resolved by the Mexican

22

U.S. Dep’t of State, Mexico 2018 Human Rights Report, at 19 (Mar. 13, 2019),
available at https://www.state.gov/wp-content/uploads/2019/03/MEXICO2018.pdf.
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authorities.23 The risk of persecution in Mexico is even higher for the most
vulnerable segments of asylum seekers. Ethnic minorities from indigenous
cultures face persecution in Mexico that is similar to the persecution they face in
their home countries. Migrant women are also at risk of sexual assault. In one
study, nearly one-third of women fleeing the Northern Triangle experienced sexual
abuse during their journey through Mexico.24 Sexual minorities also face high
rates of persecution and violence in Mexico. According to the UNHCR, two-thirds
of LGBTI asylum seekers from El Salvador, Guatemala, and Honduras reported
having been victims of sexual violence in Mexico.25
Nor is Mexico capable of providing a full and fair procedure for determining
a claim for asylum or an equivalent temporary protection. In Mexico, the principle
of non-refoulement embodied in the 1951 Convention and 1967 Protocol Relating
to the Status of Refugees (“1967 Protocol”) is systematically violated.26 There are

23

Id. at 20.

24

Doctors Without Borders, Forced to Flee Central America’s Northern Triangle:
A Neglected Humanitarian Crisis 5 (2017).
25

U.S. Department of State, Mexico 2018 Human Rights Report, at 19-20 (Mar.
13, 2019), available at https://www.state.gov/wp-content/uploads/2019/03/
MEXICO-2018.pdf.
26

See Doctors Without Borders, Forced to Flee Central America’s Northern
Triangle: A Neglected Humanitarian Crisis 5 (2017); Amnesty International,
Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central
Americans Seeking Asylum (2018), available at https://www.amnestyusa.org/
reports/overlooked-under-protected-mexicos-deadly-refoulement-of-central15

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also “strong obstacles to accessing the asylum procedure,”27 including: (i) the
absence of proper screening protocols;28 (ii) an unreasonable 30-day filing
deadline; (iii) an ineffective appeals process; (iv) understaffing and backlogs; and
(v) an insufficient number of asylum offices: four for the entire country.29
Guatemala does not fare better. Asylum seekers are at high risk of
persecution and violence in Guatemala, which is one of the most dangerous
countries in the world, not only due to their inherent vulnerabilities as migrants,
but also on account of their race, nationality, gender, sexual orientation, gender
identity and other reasons.30 And Guatemala’s asylum system suffers from similar
shortcomings as Mexico’s. According to the State Department, migration and
police authorities in Guatemala lack adequate training regarding the rules for

americans-seeking-asylum/.
27

United Nations High Commissioner for Refugees, Universal Periodic Review,
Mexico (2018), available at https://www.refworld.org/country,,UNHCR,,
MEX,,5b57009a7,0.html.
28

Id.

29

Human Rights First, Is Mexico Safe for Refugees and Asylum Seekers? (2018),
available at https://www.humanrightsfirst.org/sites/default/files/MEXICO_FACT_
SHEET_PDF.pdf.
30

See Human Rights First, Is Guatemala Safe for Refugees and Asylum Seekers?
(June 2019), available at https://www.humanrightsfirst.org/sites/default/files/
GUATEMALA_SAFE_THIRD.pdf.
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establishing refugee status, and the identification and referral mechanisms for
potential asylum seekers are inadequate.31
“Firm resettlement” bar. This bar applies only to individuals who have
firmly resettled in another country. But the Third Country Transit Bar applies to
any individual who has merely transited through a third country before reaching
our southern border.
In sum, the Third Country Transit Bar fundamentally alters the careful
balance that Congress struck, which sets forth specific circumstances in which the
potential availability of asylum in a third country impacts an individual’s ability to
obtain asylum in the United States. It disregards the specific conditions and
important protections that Congress established for ensuring that protection is truly
available in the third country and to prevent denial of asylum to the most
vulnerable refugees arriving at our borders. Thus, the Third Country Transit Bar is
not “consistent” with our asylum law, and it is therefore void.
III.

THE APPLICATION OF THE THIRD COUNTRY TRANSIT
BAR IS CONTRARY TO OUR LONGSTANDING ASYLUM
FRAMEWORK AND IT YIELDS ABSURD RESULTS
Asylum officers are dedicated public servants who carry out several

functions within the asylum system, but their role is limited by statutory and

31

U.S. Dep’t of State, Guatemala 2018 Human Rights Report, at 13, available at
https://www.state.gov/wp-content/uploads/2019/03/GUATEMALA-2018.pdf.
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regulatory authority. Asylum officers are tasked with conducting “credible fear”
screening interviews for asylum seekers referred to them by Customs and Border
Protection agents. See 8 U.S.C. § 1225(b)(1)(B); 8 C.F.R. § 208.30. During this
screening interview, the asylum officer must determine whether the asylum seeker
has a “credible fear of persecution.” 8 U.S.C. § 1225(b)(1)(B)(iii). During the
same interview, asylum officers also inquire into the individual’s credible fear of
torture, for purpose of identifying potential bases for withholding of removal or
protection under the Convention Against Torture (the “CAT”).
Asylum officers do not grant asylum (or any other affirmative relief) during
their credible fear screening interview. If a positive credible-fear finding is made
with respect to an asylum seeker, withholding of removal, or CAT protection, the
asylum seeker may move forward with her claims before an Immigration Judge in
a full hearing. See 8 C.F.R. § 208.30(f). If a negative credible-fear finding is
made, the asylum seeker is ordered removed. She may then appeal the asylum
officer’s finding to an Immigration Judge. See 8 C.F.R. § 208.30(g).
Although asylum officers are responsible for noting in an asylum seeker’s
file that a mandatory bar to eligibility may apply, prior to the Third Country
Transit Bar, the statutory exceptions were not used as a basis to find that the
asylum seeker lacks a “credible fear of persecution.” See 8 C.F.R.
§ 208.30(e)(5)(i). Indeed, USCIS’s website notes that “[t]he Asylum Officer does
18

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not make a final determination whether an individual is subject to a mandatory bar
to asylum or withholding of removal when determining whether an individual has
established a credible fear of persecution or torture. The Asylum Officer will note
in the officer’s determination the possibility that a mandatory bar will apply.”32
But the Third Country Transit Bar created two unprecedented exceptions to
the general rules governing “credible fear” interview. First, application of the
Third Country Transit Bar is a mandatory basis for a negative credible-fear finding.
See 8 C.F.R. § 208.30(e)(5)(ii). Thus, even if the asylum seeker establishes that
she has a credible fear of persecution based on a protected class in her home
country (or any third country that she transited through to reach our southern
border), the Third Country Transit Bar compels the asylum officer to find that she
did not have a credible fear of persecution because she did not apply for asylum in
a third country.
Second, for individuals subject to the Third Country Transit Bar, and only
for those individuals, claims for withholding of removal and relief under the CAT
must be evaluated in the screening using the more stringent “reasonable fear”—not
“credible fear”—standard. 8 C.F.R. § 208.30(e)(5)(ii).33 Prior to the Third

32

U.S. Citizenship and Immigration Services, Credible Fear FAQ,
https://www.uscis.gov/faq-page/credible-fear-faq#t12831n40013 (last visited Oct.
11, 2019).
33

See also U.S. Dep’t of Justice, Office of Immigration Review, Guidelines
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Country Transit Bar, asylum officers applied the “reasonable fear” standard only in
two specific situations: (1) after the reinstatement of a prior removal order; and
(2) after a final administrative removal order, which ensues from certain felony
convictions. There is a good reason why this standard was reserved for individuals
with prior violations of our nation’s laws: because it entails a higher burden of
proof, it is an inappropriate standard for an initial screening interview following a
person’s first entry into the United States. But the Third Country Transit Bar
requires the application of this standard in the “credible fear” screening process for
those individuals who have been found to lack “credible fear of persecution”
because they did not apply for and were denied asylum in a third country.
The new procedures promulgated under the Third Country Transit Bar are a
dramatic departure from the screening process that was designed decades ago, and
represent a stark re-interpretation of asylum officers’ role. Never before have
asylum officers been authorized (let alone directed) to make negative credible-fear
findings based on the applicability of a mandatory bar. The Third Country Transit
Bar changes that long-standing approach only with respect to asylum seekers
entering our country through the southern border who had not applied for and been

Regarding New Regulations Governing Asylum and Protection Claims (July 15,
2019), at 2, available at https://www.justice.gov/eoir/file/1183026/download.
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denied asylum in a third country. See 8 C.F.R. § 208.30(e)(5)(ii); see also 8 C.F.R.
§ 208.13(c)(3).
The new protocol also leads to absurd and irrational results. Under the new
regime, an individual who articulates a credible fear of persecution to an asylum
officer, but who also admits to terrorism in her home country, will receive a
positive credible-fear finding if he demonstrates that he applied for and was denied
asylum in a third country. But a refugee fleeing political violence in South
America who did not apply for asylum in Guatemala or Mexico during her journey
to the United States will receive an automatic “negative credible-fear finding”
notwithstanding the fact that she faced persecution based on a protected class in
her home country, Guatemala, and Mexico. See 8 C.F.R. § 208.30(e)(5)(ii).
Even more, after making a negative credible-fear finding based on the Third
Country Transit Bar, asylum officers must then apply a “reasonable fear” standard
to assess the individual’s claims for statutory withholding of removal or CAT
protection.34 This higher standard is applied in the screening interview only for
individuals subject to the Third Country Transit Bar. See 8 C.F.R.
§ 230.30(e)(5)(ii). It does not apply to those suspected of terrorism, engaging in
persecution, or those who present a threat to our national security, so long as they
34

U.S. Dep’t of Justice, Office of Immigration Review, Guidelines Regarding New
Regulations Governing Asylum and Protection Claims (July 15, 2019), at 2-3,
available at https://www.justice.gov/eoir/file/1183026/download.
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are able to demonstrate that they applied for and were denied asylum in a third
country. See 8 C.F.R. § 230.30(e)(2)-(3).
The fast-track application of the Third Country Transit Bar is not consistent
with our asylum laws. If Congress intended that individuals who had not applied
for and been denied asylum in a third country should not be afforded protections
that are provided to nearly every other person seeking asylum—even those who
represent a specifically identified threat to our national security—it would have
said so. It did not. A rule that circumvents Congressional intent and policy and
that yields absurd result should be stricken as null and void.
CONCLUSION
For the foregoing reasons, amicus curiae respectfully urges the Court to
affirm the preliminary injunction granted by the district court.
Respectfully submitted,

Dated: October 15, 2019

PATTERSON BELKNAP WEBB &
TYLER LLP
By: s/Muhammad U. Faridi_________
Muhammad U. Faridi
Stephanie Teplin
A. Robert Quirk
1133 Avenue of the Americas
New York, NY 10036-6710
Telephone: 212.336.2000
Facsimile: 212.336.2222
Attorneys for Amicus Curiae National
CIS Council 119

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Certificate of Compliance With Type-Volume Limit, Typeface Requirements,
and Type-Style Requirements
I certify that:
1.

This document complies with the type-volume limit of
Fed. R. App. P. 29(a)(5), 32(a)(7)(B), and Circuit Rule
32-1 because, excluding the parts of the document
exempted by Fed. R. App. P. 32(f), this document
contains 5,022 words.

2.

This document complies with the typeface requirements
of Fed. R. App. P. 32(a)(5) and the type-style
requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14-point Times
New Roman font.

Dated: October 15, 2019

PATTERSON BELKNAP WEBB & TYLER
LLP

By: /s/ Muhammad U. Faridi
Attorneys for Amicus Curiae National CIS
Council 119

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CERTIFICATE OF SERVICE
I hereby certify that on October 15, 2019, I electronically filed the foregoing
with the Clerk for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system. All participants in this case are registered
CM/ECF users and will be served by the appellate CM/ECF system. There are no
unregistered participants.

s/ Muhammad U. Faridi
Muhammad U. Faridi
Dated: October 15, 2019

_