Attorney General William P. Barr said that the United States is a “generous country,” but that its immigration court system — run by the Justice Department — is being “completely overwhelmed” by applicants crossing the southern border.
Barr said the change would curb what he called “forum shopping by economic migrants,” referring to what immigration restrictionists say is a growing trend of refuge-seekers trying to reach their most-desired destination rather than the first place that provides a safe haven.
Critics say the proposed changes are an attempt to rescind core principles of U.S. immigration law that protect vulnerable asylum seekers from being sent back to persecution in their homelands or other countries. The administration said it will publish an “interim final rule” Tuesday that will promptly take effect.
The move brought immediate threats of legal challenge; the U.S. Immigration and Nationality Act (INA) contains broad provisions that allow foreigners who reach U.S. soil to apply for asylum if they claim a fear of persecution in their native countries.
Lee Gelernt, an American Civil Liberties Union lawyer who has been contesting Trump administration immigration policies in court, said the organization will seek an injunction to block the policy’s implementation, arguing that it is inconsistent with U.S. and international law.
“The administration is effectively trying to end asylum at the southern border,” Gelernt said.
Trump officials say the executive change is needed to stop a flood of asylum claims filed by recent border crossers, particularly from Central America. Administration officials have claimed that many asylum seekers are taking advantage of the safeguards to gain easy entry into the United States, typically surrendering to border agents and stating a fear of harm if deported.
The majority of those who claim fear at the U.S. southern border are granted access to the U.S. immigration system, and many are released from custody while their claims are pending. Because U.S. courts are clogged with a backlog of nearly 1 million cases, it can take months or years before asylum applicants go before a judge. In the past five years, asylum applications have nearly quadrupled, Justice Department statistics show.
Administration officials point to the relatively low number of Central American applicants who are ultimately granted asylum — fewer than 20 percent — as evidence that a majority of their claims lack merit.
U.S. border agents are on pace to make more than 1 million arrests this year, the highest number in more than a decade, and administration officials say “loopholes” in the asylum system have become a powerful magnet for migrants who are seeking a better life but aren’t victims of persecution.
Trump administration officials on Monday characterized the move as a stopgap measure, applied in the absence of congressional changes to U.S. immigration laws.
“Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey,” DHS Acting Secretary Kevin McAleenan said in a written statement.
“Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits,” he said.
The Mexican government on Monday pushed back against the idea that the country would become what is known as a “safe third country” for asylum seekers.
Marcelo Ebrard, Mexico’s foreign minister, called the new U.S. policy “a limitation on the right of asylum with which Mexico does not agree.”
Ebrard said at a news conference that Mexico’s congress would need to approve any safe-third-country agreement with the United States. But he didn’t say what Mexico would do if Guatemalans are told to apply for asylum in Mexico upon reaching the U.S. border. He suggested that there was little Mexico could do to change the Trump administration’s policy.
“We can’t take any action because it’s a measure in the domestic sphere of the United States,” he said.
Ebrard took a similar stance in response to the MPP program — known as “Remain in Mexico” — which forces asylum seekers to wait for their U.S. court hearings on Mexican soil. He suggested that the policy had been imposed on Mexico, with no recourse.
Spokesmen for the governments of El Salvador, Guatemala and Honduras did not immediately respond to requests for comment.
Guatemala’s highest court issued three injunctions Sunday to keep President Jimmy Morales from signing a safe-third-country agreement with the United States. A group including three former Guatemalan foreign ministers solicited the injunctions.
On Sunday, the Guatemalan government canceled a meeting between Morales and Trump that had been scheduled for Monday. The government said in a statement that the cancellation was because of “speculation and legal proceedings admitted for processing to the constitutional court.” The statement said Guatemala “at no moment considered signing an agreement that would convert Guatemala into a third safe country.”
The changes announced Monday, if implemented, could give the Trump administration far more power to deny asylum to a wide range of migrants from all over the world. In the case of an asylum-seeker from El Salvador, for example, a person who traveled through Guatemala and Mexico to reach U.S. soil would effectively be penalized for not seeking protection in either of those countries.
There were doubts that the move would be the kind of deterrent Trump is seeking. Migrants who claim a fear of harm could still access the U.S. immigration court system if they potentially qualify for a lesser form of protection — withholding of removal — and the new policy probably would add layers of bureaucracy to the current system, said a U.S. asylum officer who was not authorized to talk to reporters and therefore spoke on the condition of anonymity.
“Nothing will change except more work for asylum officers,” the officer said.
According to an official with U.S. Citizenship and Immigration Services who spoke on the condition on anonymity to explain the new policy, a tougher “reasonable fear” standard will be applied, and if migrants don’t meet the threshold, they will be deported. Trump administration officials, led by senior policy adviser Stephen Miller, have urged stricter screening procedures for newly arrived asylum applicants.
Michael Knowles, president of the American Federation of Government Employees Local 1924, whose union members include asylum officers in Arlington, Va., said his members are concerned that the administration’s asylum rule will place individual officers at risk of violating current law or committing human rights abuses.
“It flies in the face of everything we’ve been trained and guided to do in implementing existing law for decades,” he said. “There is nothing in that body of law that says that this is okay. They are twisting the law beyond recognition.”
Knowles said officers have not been informed how the rule will be implemented.
“Asylum doesn’t mean everyone who knocks on the door gets in, but they are entitled to due process,” he said.
The rule change could undermine protections strengthened after World War II and the Holocaust, when the United States denied entry to Jewish refugees who were sent back to Nazi extermination camps. The premise of the program is to “never again” turn away someone who has an eligible asylum claim, Knowles said. Undermining those principles sets a dangerous precedent, he said: “If the United States can do this, why not any other country?”
The administration said the new changes would allow applicants to seek U.S. protections under three circumstances: if they are denied refuge by other nations before reaching U.S. territory, if they are a victim of human trafficking, or if they arrive via a nation that is not a signatory to international treaties against torture and persecution.
Sieff reported from Mexico City. Seung Min Kim in Washington and Gabriela Martinez in Mexico City contributed to this report.