And this rule will rip even more families apart. If an asylum-seeker is able to request protection at the southern border, she will be barred from asylum if she has transited another country. She will still be able to seek another form of protection called “withholding of removal” or protection under the Convention Against Torture. But these are lesser forms of protection, with a higher burden of proof, and they will be essentially meaningless for many immigrants. They guarantee permanent family separations: Anyone who is granted withholding of removal has no right to petition to be reunited with her children under the age of 21 or her spouse. And they leave no pathway to permanent residence or citizenship, which means people granted this protection will live in limbo. This creates, perhaps intentionally, a permanent underclass of immigrants unable to integrate and contribute fully to our communities.
The new rules immediately made me think of one of our clients at the UDC Law Immigration and Human Rights Clinic. She fled Guatemala after years of horrific abuse, which began when she was kidnapped at age 17 by her future “husband” and held against her will for six months. She is barred from asylum because the first time she crossed the border she was too afraid to explain her reasons for fleeing — her persecutor had threatened to kill her brothers if she ever told anyone what he did to her. This left her with a prior removal order and only eligible for withholding of removal. Although safe from violence and with steady work as a nanny in D.C., she will likely never see her own three children again. But I also thought of a story with a happier ending, like the one for my Salvadoran client who was granted asylum; her daughter arrived last summer. I just received an invitation to the daughter’s 16th birthday party, the first birthday her mom has been able to celebrate with her since she was 8 years old. Now, because her mother got asylum, they are reunited and safe together. If this mother arrived today, traveling through Guatemala and Mexico to seek protection in the United States, she would be ineligible for asylum, and if granted withholding protection, she’d never be able to reunite with her child.
This new rule does not, however, just affect those from Central America. Asylum seekers from all over the world travel to the southern border to reach the United States. Until this week, as long as they were not “firmly resettled,” or did not transit through Canada (the only country with whom we have signed a bilateral “safe third country” agreement), asylum seekers were still eligible for asylum in the United States. Just in my own experience in the last decade as an asylum attorney, I have met and sometimes represented individuals from Cameroon, Egypt, Nigeria, Ethiopia, Brazil, India and elsewhere who traveled through Mexico and often other countries to seek asylum in the United States.
The rule is, of course, only the latest action taken by the administration designed expressly to deter asylum seekers from reaching our shores and to make life infinitely harder for them upon arrival. Trump’s anti-asylum measures have included the infamous zero tolerance policy that led to family separation; turnbacks at the border; “metering” of asylum seekers and “Remain in Mexico”; then-Attorney General Jeff Session’s attempt to gut asylum protection for those fleeing domestic violence or gang violence; and Attorney General William P. Barr’s effort to detain indefinitely those seeking asylum, making them ineligible for bond. But this rule, even more than the others, strikes at the basic nature of asylum.
If this rule is not blocked in court, the only remaining way to seek asylum in the United States may be to obtain a visa and board a flight. But there are a few problems with that tactic. There is no visa for seeking asylum. If an individual states in their visa application that they intend to seek asylum, they are immediately denied permission to come to the United States. And many people cannot obtain a visa for any reason because their very act of going into a U.S. Embassy would alert officials in their country — often their persecutors — to their attempts to flee. Even if an asylum-seeker could safely get a visa, embassy staff will only approve those who are quite wealthy and financially secure and attest to their intention to return to their home country. Finally, the same financial barriers apply to purchasing international plane tickets.
So the rule, if it remains in effect, guts our asylum system.
It will limit the full protections of asylum to anyone who is not wealthy or connected enough to obtain a U.S. visa and a flight here. This undermines the very principles of refugee law and protection. And the rule will not stem the flow of asylum seekers or increase efficiencies in the immigration system.
Of course, there are a number of legal arguments as to why this regulation is unlawful. Within a day, the ACLU, Southern Poverty Law Center, Center for Constitutional Rights and Capital Area Immigrants’ Rights Coalition have all sued the Trump administration over the policy. The complaints challenge the illegality of the rule under the Administrative Procedures Act, the Immigration and Nationality Act. The new rule also potentially contravenes of international law, specifically the Protocol to the 1951 Convention on the Status of Refugees, to which the U.S. has been a party for more than 50 years.
But while legal challenges play out, asylum seekers will be in harm’s way. Families will be separated. And people will die.