The Washington PostDemocracy Dies in Darkness

Opinion Trump’s new rules against asylum seekers are dire. They must be challenged.

Asylum seekers, in Tijuana, Mexico, listen to names being called from a waiting list to claim asylum at a border crossing in San Diego on Sept. 26, 2019. (Elliot Spagat/AP)
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Nickole Miller is a clinical teaching fellow with the Immigrant Rights Clinic at the University of Baltimore School of Law.

The ability to seek asylum from persecution is a core human right enshrined in international and domestic law. Nonetheless, the Trump administration quietly announced a new set of rules last week aimed at permanently gutting protections for asylum seekers. With the election just a few months away, President Trump knows animus toward immigrants is an effective tool to rally his base. And with the country currently distracted by a global pandemic and a fight for racial justice, these new rules could soon become law.

That would effectively abolish asylum as we know it here in the United States. Yes, it really is this dire.

In a 161-page document published in the Federal Register on June 15 by the Department of Homeland Security and the Justice Department, the Trump administration outlined a series of proposed amendments to the regulations governing asylum. These rules would drastically restrict the eligibility of those applying for asylum in the United States. Here are just a few examples of the numerous changes to U.S. asylum law and policies included in the proposal:

  • Categorically deny claims where the applicant suffered persecution on account of gender. If implemented, this rule would rewrite long-standing legal precedent and shut the door to safety for women and girls fleeing rape, domestic violence and sexual abuse. Government statistics don’t break down the numbers, but those of us working in the field know that a large proportion of female asylum seekers have escaped this kind of persecution. Just this month, the International Rescue Committee reported that gender-based violence in Latin America has increased exponentially since the pandemic.
  • Allow immigration judges to deny asylum applications without a court hearing and testimony from the applicant. This means judges can decide if a case has merit based on the written application alone. Asylum law is notoriously complex, and the 12-page application form is confusing and filled with legalese. Such a change will be nearly fatal for the tens of thousands of asylum seekers who have no lawyer to help them with their claim in court. Data shows that those with a lawyer are already five times more likely to win asylum than those without one. Without a hearing, applicants disadvantaged by language and literacy challenges as well as the effects of trauma will face nearly insurmountable obstacles.
  • Create new barriers to obtaining asylum for anyone who attempts to enter the United States unlawfully, passes through more than one country before arriving here, works in the United States without authorization or fails to pay taxes, among other provisions. By penalizing those without the resources to secure a visa, or expecting all applicants to travel by direct flight, or demanding that they forgo working to feed their families (asylum applicants must wait 150 days before they can seek employment authorization), the Trump administration is creating a system that is actively hostile to the lived realities of most asylum seekers.

These and the nearly dozen other proposals would apply to anyone seeking asylum in the United States, regardless of how, where and when they enter the country. This includes the 866,858 individuals, including children, who have already applied for asylum and are awaiting a hearing or interview to present their cases. Once implemented, the cumulative effect of these rules will be to effectively rewrite the refugee definition out of existence and end asylum in the United States. Those who stand to suffer from these proposals include our neighbors, our classmates, our friends, our relatives and the many essential workers putting their lives on the line during the pandemic.

As an immigration attorney, I am intimately aware of the human consequences of these proposals. If they are implemented, I expect that none of my clients would win asylum. A mother who carried her paralyzed daughter on her back thousands of miles to escape a man who repeatedly raped her with impunity would likely lose her case and be deported. So, too, would a boy who journeyed alone through Guatemala and Mexico to the United States after members of a powerful cartel shot his brother and threatened to kill him next for his refusal to relinquish control of their family farm.

We cannot let the Trump administration turn this country’s back on those fleeing persecution. The proposed rules were published in the Federal Register on June 15 and will be open to comments for only 30 days. A robust response against these proposals is critical to delaying the rule-making and providing support to the legal challenges that are sure to come.

By fighting against these proposals, we uphold our obligations under domestic and international law, and we affirm our country’s commitment to humanity, freedom and hope to anyone fleeing persecution in this increasingly dangerous world.

Read more:

The Post’s View: This crisis requires political courage to respect our values. Trump isn’t doing that.

Catherine Rampell: Trump wasted so much money harassing immigrants that his immigration agency needs a bailout

Gaby Pacheco: As a dreamer, I haven’t slept well since Trump won. Now, I think I will.

Fareed Zakaria: Democrats must address the roots of our asylum crisis — or give Trump the advantage

Greg Sargent: In scathing manifesto, an asylum officer blasts Trump’s cruelty to migrants