The Trump Administration’s Plan to Effectively End Asylum Is Almost Certainly Illegal

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Tens of thousands of asylum-seekers have set up encampments in cities along the U.S.-Mexico border, where they’ve been forced to wait for weeks before they can formally enter the United States to plead asylum. But now, many of them won’t be able to try at all.

The Trump administration implemented a new rule Tuesday that will effectively end asylum protections for the hundreds of thousands of migrants who pass through another country on their way to the U.S. Migrants will now be required to apply for — and be denied — asylum protections in another country before they can apply for relief in the U.S.

Administration officials have framed the rule, which has reportedly been in the works for months, as a way of disincentivizing “meritless” asylum claims and alleviating the growing backlog of immigration cases. But experts and immigration advocates say the rule is illegal because it violates the asylum protocols issued by Congress. The American Civil Liberties Union has already threatened to “sue swiftly” to prevent the rule from going into effect.

Under the Immigration and Nationality Act, migrants can be denied asylum if they were “firmly resettled” in another country before arriving in the U.S. And migrants who pass through a “safe third country” can already be denied asylum in the U.S. if they didn’t apply in the other country first. A “safe third country” is one that has agreed to a treaty with the U.S. to process asylum seekers who arrive there first. Canada is the only country that has agreed to this status.

But the Trump administration’s new rule takes that policy a step further: Migrants will now be denied asylum if they pass through any other country, even ones that haven’t agreed to safe third country status, on their way to the U.S.

“No one could credibly argue that it is safe for asylum-seekers in Mexico or in Guatemala,” said Tom Jawetz, vice president of immigration policy at the Center for American Progress. “Moreover, there is no way in which you could argue that simply transiting through a country would constitute being ‘firmly resettled.’”

In effect, the new rule will forbid almost all migrants who arrive at the southern border from applying for asylum protections, with a few exceptions. Migrants who applied for (and were denied) asylum elsewhere can still apply. So can victims of human trafficking. The “credible fear” interview — the first step in applying for asylum — will only be given to migrants who meet these exceptions.

People who fly to the U.S. and plead for asylum in airports won’t be affected by the new rule — but most foreign citizens need visas to travel to the U.S., which most asylum-seekers wouldn’t qualify for anyway.

The new rule won’t apply to migrants who have already made it to the U.S. and are currently fighting their cases, but it will apply to the tens of thousands of people who have been turned away at ports of entry as part of the administration’s “metering” policy. Those migrants, many of whom have been waiting in Mexico for months, can now be denied asylum altogether because they waited their turn to enter.

“People who would have qualified for asylum in the United States will be deported under these regulations,” said Sarah Pierce, policy analyst for the U.S. Immigration Policy Program at the Migration Policy Institute. “They’ll be deported back to the countries from which they were fleeing. This really raises the standard for applying for asylum in the United States, and it lowers the benefits that you could ultimately get.”

The new rule doesn’t exclude migrants from applying for other protections, like relief from deportation under the Convention Against Torture, an international human rights treaty that provides certain rights to refugees who would be tortured or persecuted in their home countries. But that’s a more difficult process than applying for asylum.

Regular asylum applicants have to prove a “well-founded” fear of persecution in their home country, which the Supreme Court has defined as a 10% chance that being sent home could put them in danger. But migrants who apply for protection under the Convention Against Torture have to prove that they’re “more likely than not” to prove persecution in their home country: a 51% or more chance.

Instead of being given a green card — like they would be if granted asylum — migrants who manage to get relief under the Convention Against Torture are granted “withholding of removal.” That means they can’t be deported but also don’t have a path to citizenship.

“Because [the administration is] implementing this rule, because asylum is now gone, because the credible fear process is now gone, you have to basically prove your asylum case the minute you get apprehended,” Jawetz said.

The administration claims the rule is intended to cut down on “meritless” asylum claims and cites the high number of migrants who are ultimately not granted asylum as proof that thousands of people are attempting to exploit loopholes in the process. In fiscal 2017, 61.8% of asylum claims were ultimately denied.

“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,” Kevin McAleenan, acting secretary of the Department of Homeland Security, said in a statement Monday, the day before the rule went into the federal register.

But losing an asylum case doesn’t necessarily mean a migrant is trying to game the system.

There are several instances of migrants losing their asylum cases and being deported to their home countries, only to be killed by the very people they fled in the first place. Migrants who don’t find — or can’t afford — a lawyer are more likely to be deported, and the Trump administration’s attempt to speed up the asylum process has made it even more difficult for migrants to find legal representation.

“It’s extremely difficult for asylum seekers to find counsel. It’s difficult for them to even understand the process through which they’re applying,” said Sarah Pierce, a policy analyst for the U.S. Immigration Policy Program at the Migration Policy Institute. “Even to get counsel, they first have to know that they’re in removal proceedings and that they would benefit from counsel. Then they have to find someone who’s a trustworthy advocate — and who they can afford — to go with them through these proceedings. It’s an uphill battle.“

Nationally, only 37% of immigrants in removal proceedings — including both asylum seekers and immigrants who were arrested in the U.S. — have legal representation, according to a 2016 study by the American Immigration Council. That same study found that non-detained immigrants with legal counsel were five times more likely to win their cases than those without attorneys.

Cover image: Samira Lopez, 5, of Honduras carries a wet mattress and a guitar as she plays in a migrant camp where a few hundred Central Americans continue to camp out outside the closed Benito Juarez sports complex, in Tijuana, Mexico, Saturday, Dec. 8, 2018. (AP Photo/Rebecca Blackwell)