How Trump is making it harder for asylum seekers
Photo: Pedro Rios / AFSC
People fleeing violence or danger in their home countries should be welcomed with compassion–not confronted by overwhelming obstacles to seeking asylum. But the Trump administration has repeatedly imposed new restrictions on asylum seekers, making it even harder for people to claim protection in the United States.
Here are some of the ways the administration has sought to dismantle the asylum system – and how these restrictions hurt migrants and communities in the U.S.
Barring people who entered the U.S. between ports of entry
In November 2018, Trump announced an “asylum ban” that barred immigrants who enter the country between border checkpoints from claiming asylum – flagrantly disregarding U.S. and international law.
Initially, separate court rulings allowed the asylum ban to move forward at the border states of New Mexico and Texas. But in September 2019, a federal court reinstated a nationwide block on the ban along the entire stretch of the southern border including California and Arizona.
Blocking migrants who don’t apply for asylum before arriving at the southern border
In July 2019, the Trump administration announced a rule change that prevents migrants from applying for asylum if they traveled through another country before reaching the U.S. if they didn’t apply in the previous country.
This transit ban was initially blocked by a federal judge, but in September 2019, the Supreme Court allowed the administration to implement the rule while it was still being challenged in court. The order effectively bars migrants from Honduras, El Salvador, Guatemala, and other countries (except Mexico) from seeking asylum if they show up at the U.S. southern border.
Outsourcing asylum obligations to countries that can’t meet them
“Remain in Mexico” policy: In January 2019, the Trump administration began implementing a policy formally known as “Migration Protection Protocols” that forces Central Americans seeking asylum to return to Mexico–for an indefinite amount of time–while their claims are processed. Since then, more than 50,000 asylum seekers have been sent to Mexico to wait, where almost none have access to legal help with their claims.
The “remain in Mexico” policy is a clear violation of both U.S. and international law, putting asylum seekers in further danger. In March 2020, the Supreme Court said the Trump administration could continue the policy while lower-court challenges continue.
Guatemala as a “safe third country”: The Trump administration has entered a “safe third country” agreement with Guatemala, which would require asylum seekers passing through Guatemala to the U.S. to apply for asylum first in Guatemala.
The agreement could be a violation of U.S. refugee protection laws. What’s more, Guatemala cannot qualify as a “safe third country” as it lacks infrastructure to assist large numbers of refugees.
An agreement with El Salvador: The El Salvadoran government has agreed to receive asylum seekers sent back from the United States. Under the agreement, any asylum seeker who is not a national of El Salvador could be sent back to El Salvador and forced to seek asylum there.
Agreements with Honduras: In a series of agreements with the Honduras government, the Trump administration has sought to curb migration from the region to the U.S. In an agreement similar to those signed on to by the governments of Guatemala and El Salvador, the U.S. could send asylum seekers back to Honduras if they passed through the country without first seeking asylum there.
The agreements include a commitment to developing the capacity of the asylum system within these countries, as both El Salvador and Honduras (like Guatemala and Mexico) are incapable of offering the protections to groups who seek asylum in the U.S.—a majority of which are their citizens.
Reports show that Mexican, Honduran, and Salvadoran asylum seekers—including families with children—are already being deported to Guatemala.
Restricting who is eligible for asylum
Under U.S. law, an asylum seeker must prove a well-founded fear of persecution in their country of origin based on religion, race, nationality, political opinion, or membership in a “particular social group.” The Trump administration has changed how these eligibility requirements are defined, drastically reducing the number of people who are eligible for asylum.
The administration has made these changes through the “self-referral authority” of the U.S. attorney general. Unlike other courts in the U.S., immigration courts are controlled by the Justice Department. As the head of the Justice Department, the attorney general has exercised a previously little-used authority to reopen and refer immigration cases to himself for a new decision, essentially rewriting long-standing legal precedent in the process.
Trump’s changes in eligibility requirements potentially affect groups including:
Family members: Under a July 2019 decision, being persecuted based on threats against a family member is no longer likely to qualify someone for asylum – dealing more roadblocks to families seeking safety in the United States. The policy essentially says that being a member of family does not count as being part of a “particular social group.”
Victims of domestic or gang violence: In June 2018, then-Attorney General Jeff Sessions announced that most people fleeing domestic violence or gang violence would not qualify for asylum in the United States – a decision that affects thousands of people who have escaped horrific situations in their home countries.
Slowing the processing of asylum claims
In early 2018, U.S. Citizenship and Immigration Services (USCIS) announced it would process recent affirmative applications for asylum before older ones. This “last in, first out” policy will add years to the time that asylum seekers who applied prior to 2018 have to wait for their interviews.
In March 2019, the administration announced that it would close 21 international immigration offices, a move that will further increase the backlog in applications to USCIS.
In July 2019, USCIS leadership encouraged USCIS employees to assist ICE in immigration enforcement instead of processing visa applications, which could further slow asylum processing.
Denying asylum seekers access to attorneys
The administration is piloting a program called the Prompt Asylum Claim Review (PACR), which will hasten the removal of asylum seekers by making it harder for them to meet with a lawyer and fast tracking the deportation process to 10 days.
Previously, asylum seekers who crossed into the U.S. were transferred to (Immigration and Customs Enforcement (ICE) detention centers, where ICE must provide access to a telephone and an opportunity to meet with an attorney to prepare for an asylum screening and review by an immigration judge.
Under PACR, asylum seekers are kept in Customs and Border Protection (CBP) facilities, rather than transferred to ICE. They have 24 hours to call a family member or an attorney before being interviewed by an asylum officer. More than 1,000 asylum seekers have already been affected by this program, which denies them their rights to due process and legal counsel.
Proposed asylum changes
Work restrictions: In November 2019, the administration proposed a rule to restrict work permits for asylum seekers. Asylum seekers would have to wait to apply for work permits for one year from the date they filed asylum applications with USCIS.
New and increased fees: For the first time, USCIS is planning to charge a fee for people seeking asylum. If implemented, asylum seekers would face multiple fees, including a new processing fee of $50—as well as $500 in non-waivable fees and a further payment of $450 for an initial work authorization.
Additional barriers for eligibility: The administration wants to change the way immigration officials determine whether a person’s interaction with the criminal legal system affects their application for asylum. The proposed rule would impose sweeping and harsh bars to asylum based on allegation of criminal conduct without room for due process.
Anti-asylum policies that have been struck down
The good news is that several of the administration’s attempts to undermine asylum have successfully been challenged and stopped in the courts, including:
- Trump’s “zero tolerance”policy, which prosecuted all adult immigrants who entered the U.S. between ports of entry and separated thousands of children from their families at the border, spurring nationwide protests.
- Stripping asylum seekers of their right to an immigration court custody hearing, which determines whether they can be released from detention on bond – another way of holding them in detention indefinitely.
- Arbitrary detentionof asylum seekers even after they pass a “credible fear” interview and are awaiting a hearing on their asylum claim. A federal court ordered that each case should be reviewed for conditional release eligibility.
- Although the transit asylum ban is still preventing recent migrant arrivals from seeking asylum in the U.S., a federal judge has blocked the ban from applying to thousands of asylum seekers who were turned away at the U.S.-Mexico border before the policy was implemented.
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