In a sudden move to end asylum, the Trump administration ordered that no one who comes through a third country can apply for U,S,. asylum unless they have already gone through the entire process of applying for asylum in that third country and have been denied, That means only Canadians and Mexicans can apply for asylum in the United States. Anyone else has to cross a third country to get here—so they would be automatically denied.
The new rule, announced by the Trump administration on Monday to go into effect on Tuesday, clearly violates U.S. laws on asylum, as well as every international convention and human rights accord. Several organizations, represented in court by the ACLU, the Southern Poverty Law Center, and the Center for Constitutional Rights, sued to overturn the new regulation.
Here’s a quick explanation of U.S. asylum law, followed by a list of some of the most immediate and inhumane consequences of this regulation:
Under longstanding U.S. law, no one can apply for asylum from outside the United States. An asylum-seeker can apply at a border checkpoint or inside the United States. They can apply regardless of how they got here, with or without a visa, swimming the river or walking through the desert or waiting on a bridge in Mexico for months for a magic number to be called.
The first step in applying is a credible fear interview, in which the asylum seeker explains why they are afraid to return home.
Under long-standing practice, that interview is conducted by an asylum officer who is trained and experience in interviewing asylum seekers. If the officer finds credible fear, then the asylum seeker gets a date to present a full application.
Trump thinks that the trained and experienced asylum officers are letting too many people apply, so last month, the Trump administration ordered that Border Patrol officers can conduct credible fear interviews. You know—the officers who participated in that racist Facebook group, the officers were hired and trained to catch migrants and lock them up.
The credible fear determination is only the first step, and it is a deliberately lower bar. Credible fear is not a grant of asylum: it just means the asylum seeker gets to make an application for asylum. In order to get asylum, the person has to show persecution or fear of persecution, based on their race, nationality, political opinion, religion or membership in a particular social group.
Asylum seekers can make an affirmative application, if they are present and not in removal (deportation) hearings or a defensive application, if they are already in removal proceedings in immigration court. The process is long and extremely complicated.
As you might expect, under the Trump administration, fewer asylum applications get approved: only about 35 percent last year. Even facing these odds, about 98 percent of asylum seekers showed up for their immigration court hearings. Syracuse University reports on the government data on immigration:
“During FY 2018, only 573 or 1.4 percent were denied asylum because they failed to appear for their scheduled hearing. That meant for 98.6 percent of all grant or deny decisions, the immigrants were present in court.”
In the past, people who fear persecution by gangs or through domestic violence have been able to apply for asylum. Attorney General Jeff Sessions ordered an end to such applications, even when police and government officials in the home country either fail to protect or, as sometimes happens, actually are in cahoots with gangs or with abusive domestic partners.
What the Latest Anti-Asylum Regulation Does
The latest regulation—announced and imposed without any Congressional action and without any chance for the public comment that is normal for federal regulations—eviscerates U.S. asylum law. Among the immediate consequences:
- Thousands of people have been following U.S. dictates and waiting in Mexico for months their number to be called for an asylum interview at a border checkpoint. They will never be called.
- No Guatemalan or Honduran or Salvadoran asylum seekers will be allowed to apply for U.S. asylum.
Time Magazine talked to Elora Mukherjee, a professor of law at Columbia University and director of Columbia Law School’s Immigrants’ Rights Clinic. She said:
“This president, this administration, is trying to end asylum. This rule is another move to turn refugees with well founded fears of persecution back to places where their lives would be in danger….
“In our system of checks and balances, the code of federal regulations cannot be overwritten by executive fiat. The President can’t just rewrite the law.”