The Trump administration has proposed a regulation that would deliver its biggest blow to the US asylum system yet, vastly expanding immigration officials’ authority to turn away migrants. If enacted, it would all but close America’s doors to asylum seekers — a signature policy for a president desperately trying to rally his base in an election year.
The regulation, which was announced Wednesday, would allow immigration officials to discard asylum seekers’ applications as “frivolous” without so much as a hearing, and make it impossible for victims of gang-related and gender-based violence to obtain protection in the US. It would also refuse asylum to anyone coming from a country other than Canada or Mexico, or who does not arrive on a direct flight to the US, as well as anyone who has failed to pay taxes, among other provisions.
President Donald Trump has been working to dismantle the asylum system for years, but this latest regulation is part of an election-year push to curtail immigration. In recent months and under the pretext of responding to the coronavirus pandemic, his administration has closed the US-Mexico border, begun rapidly returning asylum seekers arriving on the southern border to Mexico, and issued a temporary ban on the issuance of new green cards — policies that are now being challenged in court.
He is also expected to soon impose new restrictions on work-based visas with the stated purpose of protecting jobless Americans.
These policies had already made it exceedingly difficult for asylum seekers to apply for and obtain protections amid the pandemic. The administration’s latest regulation would make it all but impossible.
“While a rash of recent policies have gutted the process of seeking asylum, this new rule is the Trump administration’s most dramatic attempt yet to redefine who qualifies for this vital protection,” Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA, said in a statement. “[T]he dozens of new changes these regulations make to asylum laws, which practically write the refugee definition out of existence, will be profound and potentially long-lasting.”
How Trump has gutted asylum
Migrants have the right to pursue asylum in the US if they have “credible fear” of persecution in their home countries on account of their race, religion, nationality, political opinions, or membership in a “particular social group,” such as a tribe or ethnic group. Once they are granted asylum, they can obtain social services through refugee resettlement agencies and apply for a green card one year later.
The US has historically sought to be a safe haven for these immigrants, providing a global model of how a powerful country should support the world’s most vulnerable people. But since February 2017, Trump has built up, layer by layer, a series of obstacles for asylum seekers arriving at the southern border, forcing many to wait in Mexico for months at a time. US Customs and Border Protection officials have been limiting the number of asylum seekers they process at ports of entry each day, making migrants wait in Mexico for their turn.
Even after migrants are processed, they are quickly sent back to Mexico under the Trump administration’s “Remain in Mexico” policy, officially known as the Migrant Protection Protocols (MPP). More than 60,000 migrants have been sent back to await decisions on their US asylum applications. Thousands of them have been living for months in makeshift encampments, where they rely on volunteers for basic necessities, are targeted by criminal gangs, and have little means to deal with the current public health crisis.
All of these restrictions on asylum have purportedly been implemented with the aim of clamping down on fraudulent claims that could be based on, for example, fake identification documents or fabricated testimony about the circumstances an applicant is fleeing in their home country.
“The biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country,” Trump said in April 2019.
But in actuality, there isn’t any data to support the administration’s assertion that fraudulent claims are on the rise or make up any significant portion of asylum applications filed. If someone’s asylum application is denied, it doesn’t necessarily mean that they filed a fraudulent claim misrepresenting who they are or why they fled their home country. But the Trump administration has suggested otherwise.
In recent months, the administration has found another rationale for clamping down on asylum: the coronavirus pandemic. When the pandemic hit, US Customs and Border Protection invoked public health authorities to turn away asylum seekers who might be carrying the coronavirus. More than 20,000 migrants have been sent back to Mexico under the new system after being processed in the field, rather than at US Border Patrol stations, and without so much as a medical exam.
Now, the administration is yet again invoking claims of fraud as the rationale for the new regulation, arguing that it will help the Justice and Homeland Security departments “more effectively separate baseless claims from meritorious ones.”
“This would better ensure groundless claims do not delay or divert resources from deserving claims,” the agencies wrote in a press release.
What the regulation would do
Under the current system, asylum seekers who are apprehended by immigration officials or who present themselves at ports of entry without a valid visa are subject to what’s called defensive asylum proceedings. In order to proceed, they first have to prove in an initial interview with a US Citizenship and Immigration Services asylum officer that they face “credible fear” of persecution in their home countries, or else they will be swiftly deported. They then have to defend their claim in immigration court, where an immigration judge will examine the evidence and decide whether to grant them asylum or any other form of deportation relief.
The regulation would make it much harder for asylum seekers to have their day in court and access to due process — especially if they don’t have access to legal counsel, which is the case for the vast majority of them. It would raise the burden of proof in their initial asylum interviews, making it harder to move forward with their asylum claims.
And even if they are able to get past that first step, they would not be granted a full immigration court hearing in which they can also claim forms of humanitarian relief other than asylum, such as protections under the United Nations’ Convention Against Torture for individuals who would likely be tortured or killed by their own governments.
The regulation would also gut protections for two groups that have brought an increasing number of asylum claims in recent years: victims of gender-based violence, including domestic violence victims and LGBTQ individuals, and victims of gang violence and recruitment. That could cut off many vulnerable migrants coming from Central America, where criminal gangs such as MS-13, which has often attracted Trump’s ire, target young men for recruitment and threaten them and their families with violence if they refuse to join.
It would also drastically raise the standard for an immigration judge to grant asylum such that applicants would have to show a direct failure of their government to intervene in their case. And it would bar anyone who has been in the US for more than a year from applying for asylum, even though Congress has provided exceptions to the one-year filing deadline — a proposal that the American Immigration Council’s Aaron Reichlin-Melnick called “patently illegal.”
Starting on June 15, the public will have 30 days to comment on the proposal. The Trump administration will have to review and address those comments before issuing a final rule.
Correction: This story previously stated that the public comment period is 60 days — it is 30 days.