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People wait to apply for asylum in the United States along the border in Tijuana, Mexico.
The Trump administration's latest asylum rule is a draconian measure meant to stop asylum seekers from entering America. Any migrant who travels through a third country en route to the United States would be ineligible for asylum. It has immediately faced lawsuits, first by the American Civil Liberties Union and other groups just hours after the rule took effect on Tuesday and then by two other Washington, D.C., groups on Wednesday. The rule represents the administration’s true intent: They have no qualms about barring all asylum seekers, and if they must pay lip service to international law, they’ll do their best to bar individuals that do pass through the newly-fortified system from a path to citizenship.
The first case, filed in the U.S. District Court of Northern California, has a hearing scheduled for Wednesday. Lee Gelernt, the attorney for the ACLU in the case, told me the ACLU is hoping that the judge will issue a temporary restraining order, which would block the Trump administration from carrying out the rule until the case is heard. The second case, filed in the U.S. District Court of Washington, D.C., has a hearing scheduled for today.
Should the rule be upheld, “Chaos at the border will ensue, and the lives of untold asylum seekers in grave danger will be put at risk, as they may be imminently removed and effectively delivered back to their persecutors without ever having had the chance even to apply for asylum in the United States,” the ACLU's complaint states, arguing that the rule is unlawful under the Immigration and Nationality Act. It “will effectively end asylum on the southern border,” Gelernt wrote in an email to the Prospect.
Plaintiffs could succeed on a technicality: The administration attempted to bypass administrative requirements when issuing this latest rule, by skipping the legally required public comment period. If true, that would bolster the case for an injunction on these grounds. Although it is possible the administration can bypass the public comment period, the case's lawyers don't believe the rule meets the requirements to be exempt.
The asylum rule, issued last Monday, came just days after a rumored safe third country agreement with Guatemala fell through. That bilateral agreement would have enabled the U.S. to deny asylum seekers the ability to file in the U.S. on the grounds that Guatemala was a “safe” third country for asylum with a comparable asylum system as required by international law for these agreements, despite the Guatemala’s high rates of violent crime and the country’s changing climate forcing farmers to migrate. Refugee advocates decried the deal, saying that it would harmfully reshape geopolitics in the region and put thousands of migrants in danger by forcing them to remain in a country that was unsafe for them.
But the Trump administration's alternative is just another extension of its immigration agenda. The asylum ban from November 2018 was another interim final rule that limited asylum access for those crossing between official ports of entry, before a court blocked it. The new rule attempts to work around international law by barring asylum seekers on the grounds that they must first apply in any country through which they pass that signed the 1951 Refugee Convention. This includes Mexico, through which Central American and extra-continental migrants must travel to reach the southern border.
Should the rule be allowed to remain in place, the consequences for migrants would be dire.
How the Asylum Rule Would Work
Asylum seekers attempting to file a claim in the U.S. before this latest asylum rule had several options. Arriving at the border, the asylum seeker requests to file a claim from a CBP officer before being transferred to ICE custody in an immigration detention center. Then, the asylum seeker goes through a credible fear interview which has a low burden of proof. Those who pass—and the vast majority do—are sometimes released on parole to live and work in the United States while they await their court date, which is when their case is heard in an immigration court. If asylum seekers pass through an unofficial port of entry, they may still be released on parole but in that case they are released on bail, the average cost of which has skyrocketed.
It could be months or even years before asylum seekers' cases will be heard in immigration court. Immigration courts, it should be noted, are under the Department of Justice; they are not independent judiciaries and thus are influenced by the whim and policy agenda of DoJ. Of course, it is difficult to measure the extent of this influence, but we do know that at least one judge has not granted a single person asylum in five years on the court.
Should the new rule escape a temporary restraining order, migrants would not be allowed to seek asylum within the United States. It is yet unclear whether the administration will force people to remain in Mexico, or if they will actually bus migrants back to where they came from. Experts also said that it is unclear how the new rule might affect asylum wait times for migrants at the southern border.
The new rule, to some extent, operates as a steamroller version of a safe third country agreement. When done as designed, safe third country agreements are meant to help share the costs of processing and resettling asylum seekers. They are also meant to prevent “asylum shopping,” which is when asylum seekers go to a new country and apply for asylum after being previously formally resettled elsewhere. The U.S. has a safe third country agreement with Canada, and that agreement is generally considered one that works: Both countries have similar protections for asylum seekers (or at least historically did) and fully-equipped asylum systems.
But the new rule goes much further than a safe third country agreement. Asylum seekers need only cross through a third country that signed the Refugee Convention—safe or not—to be rendered ineligible for asylum in the U.S.
The new rule would force asylum seekers toward another, much less welcoming path. In order to attempt to stay in the United States, migrants would have to pass a “reasonable fear” standard, which has the higher “more likely than not” burden of proof than the “credible fear” standard. If migrants pass this hearing, they are then subject to what's known as a “withholding of removal,” essentially a deportation order placed on their heads but the government does not act on it.
Their families would not be not eligible for family reunification. Instead, each family member must go through the system independently, adding to the already backlogged system, says Jennifer Quigley, director of refugee advocacy at Human Rights First. She added that because some cases are based on the claim of one person, making each family member apply individually means that only that one person may be granted “withholding of removal,” which would create more family separation.
“It's chaos,” says Quigley. “It's infuriating in addition to being illegal.” She says that recently U.S. Citizenship and Immigration Services has been training Customs and Border Patrol officers to conduct asylum claim evaluations instead of asylum officers.
Migrants who face a “withholding of removal” have no path to citizenship. As longtime asylum attorneys John Wilshire Carrera and Nancy Kelly told me, the migrants would remain in the U.S., but would never be able to have their family with them, could not travel, and would never be eligible for a green card.
“This is an extremely thinly veiled attempt to save face [in the international community] while in actuality executing their stated goal of ridding America of brown-skinned immigrants as part of a nativist policy,” says Angelo Guisado, an attorney for the Center for Constitutional Rights. “The last thing this administration wants is hundreds of thousands of newly minted brown-skinned citizens.” He emphasized that denying them the right to vote is essential to this administration. Guisado is part of the initial lawsuit led by the ACLU.
The Asylum Bait and Switch
The new rule creates a brutal reality for those currently seeking asylum, notably the nearly 20,000 people along the border stranded with no recourse. Forcing them to wait outside of American territory after giving them a number in the queue of people waiting for an asylum interview, the government is now saying under this new rule that they are ineligible for asylum— despite arriving at the border weeks if not months before the new rule took effect.
Says Guisado: “I am losing sleep over what would happen to those individuals who made an agreement with the government that if they got in line only for the government to turn around and say you're ineligible [to apply for asylum].”
Migrants already in asylum proceedings under the Migrant Protection Protocols, known as the “Remain in Mexico” policy, may not be affected by the rule. Over the weekend, the administration announced an expansion of that program to part of the Texas Rio Grande Valley, across the border from a Mexican city the U.S. government warns Americans not to visit.
To deny migrants asylum under the new rule is acting in bad faith, Guisado explained, because Remain in Mexico barred migrants from crossing the border and accessing the asylum system before the rule took effect. Guisado said he expects this will be the subject of yet another lawsuit or perhaps an amicus brief over the rule.
Guisado told the Prospect that the Center for Constitutional Rights may file an amicus brief on behalf of those stranded by the policy who are now barred by the new rule. “It would be manifestly unfair for the government to extend such a meager olive branch only to snap it in twine,” he said.
But for asylum seekers currently at the border, the reality is grim. Refugee advocates say that asylum seekers are in danger in Mexico because of the country's xenophobic tendencies—and because, as migrants, they are seen as more vulnerable.
One of the key aspects of the 1951 Refugee Convention is Article 33, which requires that countries not send asylum seekers back to the country from which they are fleeing or, more broadly interpreted, to a country where they are in danger. This is also known as “non-refoulement.” This latest rule from the Trump administration seems to contradict that. But because the rule allows migrants to still have a hearing, albeit only for a withholding of removal or the Convention Against Torture, which have higher standards of proof, administration officials claim the rule complies with international law.
The plaintiffs in the ACLU case see the rule as an explicit violation of these international and domestic laws as well as American values. “It is a dramatic abandonment of our country's longstanding commitment to the protection of vulnerable asylum seekers,” the complaint states.
Reports on Friday indicated that the administration is now considering a virtual end to America’s refugee system—slashing the number down to either zero, or between 3,000 and 10,000. Notably, refugees can apply for protection abroad while asylum seekers file for protection once they reach U.S. territory, but the principle of protecting persecuted people is the same. Like the asylum rule, this possible end to the refugee program signals a harsh end of America’s commitment to international norms and protecting vulnerable people.
