Gibson Dunn Files Amicus Brief Regarding Refugee Protocol

Gibson Dunn filed an amicus brief in the U.S. Court of Appeals for the First Circuit on July 17, 2017, on behalf of prominent international legal scholars in support of rehearing. The question presented is whether a refugee who reenters the United States after a prior removal can apply for asylum. Two statutes point in opposite directions: 8 U.S.C. § 1158(a) authorizes “any” individual to apply for asylum “irrespective of status.” 8 U.S.C. § 1231(a)(5) bars an individual who reenters the country without authorization from obtaining “any relief,” and DHS regulations prohibit such a person from applying for asylum. The First Circuit split 2-1, with the majority deferring to the regulations, while the dissent (Judge Stahl) would have held that the regulations violate the United States’ treaty obligations under the Refugee Protocol. We argued on behalf of the law professors that the dissent was correct, and the “Charming Betsy doctrine” (which requires harmonizing statutes with treaty obligations absent a clear congressional intent) requires prioritizing Section 1158 to avoid violating the Refugee Protocol. The petition for rehearing is pending. Joseph Hansen wrote the brief, with supervision and assistance from Joshua Lipshutz and assistance from Virginia Newman. Simpson Thacher was co-counsel on the brief.