Is the CLP Rule a Nullity?

Charles Legal Services assesses that the CLP rule is essentially a nullity because, as a practical matter, it does not restrict most aliens’ eligibility for asylum any more than preexisting standards. Despite the multifaceted analysis regarding whether the presumption against eligibility applies and the evidence required to rebut it, the last step in the CBP officers’ analysis is an exception that swallows the rule. Again, as a humanitarian safeguard, the CBP officers are permitted to—and should—issue an NTA to any alien who demonstrates a “reasonable possibility of persecution.” 8 C.F.R. § 208.33(b)(2)(i). That standard is coextensive with the ultimate standard for asylum under 8 U.S.C. § 1158(b)(1)(a) and 8 U.S.C. § 1101(a)(42)(A): “a well-founded fear of persecution.” Although worded differently, both standards ultimately boil down to whether the alien is likely to experience persecution in their country of origin from an objective perspective. Without a meaningful distinction between a “reasonable possibility of persecution” and a “well-founded fear of persecution,” the CLP Rule is a distinction without a difference from preexisting standards.