The Trump administration decreed sweeping changes to U.S. asylum policies Monday, in a move aimed at curtailing the soaring number of Central Americans who have arrived across the southern border seeking refuge.A joint statement from the Department of Homeland Security and the Department of Justice said the Trump administration on Tuesday will publish an interim final rule that will sharply restrict access to the U.S. asylum system for anyone who did not seek protection from other countries through which they transited before reaching the United States.The move is almost certain to trigger swift legal challenges, because the U.S. Immigration and Nationality Act (INA) contains broad provisions allowing foreigners who reach U.S. soil to apply for asylum if they claim a fear of persecution in their native countries.An American Civil Liberties Union attorney who has been challenging Trump administration immigration policies in court said the organization would seek an injunction “immediately.”
This represents a profound, drastic change in U.S. immigration policy, both legally and morally.
We have a principle enshrined in law and derived from our adherence to international human rights documents: It’s the idea that the United States will grant a fair hearing to anyone who is fleeing horrific conditions and presents himself at our border to seek refuge.
The Trump administration is basically reneging on this commitment. The new proposal is truly radical and extreme.
For starters, the core element of the proposal — restricting access to asylum for anyone who did not apply for it from a third country through which he passed — is almost certainly illegal.
Stephen Legomsky, a law professor at Washington University and former chief counsel of U.S. Citizenship and Immigration Services, points out that under federal law, any undocumented immigrant on U.S. soil (whether they just crossed the border or were detained in the interior) who requests asylum or expresses a fear of persecution must be given an asylum interview.
As Legomsky notes, there are only two ways the law denies asylum based on the possibility of getting protection elsewhere, as the new Trump interim regulation tries to do, and neither applies here:
There are only two specific situations in which the statute bars asylum because of the possibility of protection elsewhere. One of them is when the person was “firmly resettled” in one of those countries. The interim regulation, in contrast, would bar asylum regardless of whether the person was firmly resettled there.Second, Congress has barred asylum when the person can be returned to a third country that has entered into a bilateral or multilateral treaty with the U.S. that authorizes sending the asylum seekers there. The U.S. has such a treaty with Canada but not with any other country. That fact alone makes the interim regulation illegal.
Legomsky concludes that the “regulation violates the clear language of the law, and I expect that the courts will quickly block it.” Tom Jawetz of the Center for American Progress makes a similar argument.
What’s more, in functional terms, Legomsky argues that this proposal would “effectively end asylum for almost all who arrive at our southern border.” That’s because, Legomsky notes, the new regulation would require applicants to try for asylum in another country through which they passed, and also to wait until that application is denied before having the right to apply for asylum in the United States.
Given bad conditions in Mexico, the country that many would end up applying for asylum in, it’s already an open question whether this would even constitute meaningful protection.
“The endemic violence that has gripped Mexico in recent years makes it an impossible alternative for those already traumatized by the violence from which they’re fleeing,” Legomsky points out. He adds that those who could not avail themselves of this alternative “would be barred from asylum in the United States no matter how great the dangers they face at home.”
It’s important to understand just how disingenuous and saturated in bad faith the administration’s overall position has become.
Trump claims he wants Congress to close “loopholes” that are supposedly incentivizing migrants to try for asylum. He wants changes to the law that would make it possible to hold families together in detention for a long time, so families don’t have the “pull” to show up and blend into the interior after they are released, pending their hearings
But the best information shows that the vast majority of migrants actually do show up for their hearings. Meanwhile, Trump has moved to cut off aid to the Northern Triangle countries, aid that is designed to mitigate the very abysmal conditions spurring many of these migrations — and now he’s trying to make it virtually impossible for them to apply for refuge here.
All of this is a reminder that for Trump and his immigration adviser, Stephen Miller, the real goal is not to just close those loopholes. It’s to ensure that fewer people actually end up getting asylum here, to reduce the numbers of immigrants in this country. That’s why Trump is also doing many, many other things to make it harder to apply and qualify for asylum — so fewer succeed in getting asylum, even if they merit it. This new proposal is of a piece with that.
Thus it is that Trump and Miller also slashed the number of refugees we accept, to the lowest level since the refugee program was created in 1980, and tried (but failed) to get Congress to dramatically cut legal immigration.
All of this is more extreme than what Democrats have proposed to deal with the asylum crisis: A combination of increased aid to Central American countries and greater investments in legal services for migrants and social services to track them, on the theory — which the numbers bear out — that if asylum seekers have a better chance at succeeding in qualifying, they show up for hearings. That, plus investments in unclogging court backlogs, would make the system function better.
A ton of attention has been paid to the fact that some Democrats have suggested decriminalizing border crossings. But criminal prosecutions for crossing the border (which is only a misdemeanor) were rare before the early 2000s, and most immigration violations are already dealt with through the civil court system, which is responsible for deportations. Moving all those cases into the civil courts wouldn’t mean anyone could walk into the United States and have legal status.
That isn’t to say there’s no case to be made against the decriminalization of border crossing. But it wouldn’t necessarily represent a complete revolution in American immigration policy. What Trump is proposing would.
It seems likely that, like many of the Trump administration’s previous moves on immigration, this one will be struck down by the courts. But that doesn’t make it any less alarming.