Trump Cements Asylum System Overhaul Over Protests
Law360 (December 10, 2020, 7:49 PM EST) –
The Trump administration finalized a rule on Thursday that narrows asylum eligibility and raises the bar for passing early fear screenings for migrants fleeing persecution, despite widespread criticism that the changes would devastate the United States’ asylum program.
The U.S. Department of Homeland Security and the U.S. Department of Justice first proposed the changes in June to allow immigration judges to reject certain claims for protection before migrants have a full hearing. The proposal also introduced new bars on asylum eligibility, including one for failing to pay taxes; narrowed the social groups whose members may qualify for protection; and narrowed the definition of “persecution.”
The final rule is “substantially the same,” according to the departments, and is intended to help “allocate limited resources in order to more expeditiously adjudicate meritorious asylum, statutory withholding of removal, and [Convention Against Torture] protection claims.”
The draft regulation attracted over 87,000 public responses from members of Congress, advocacy groups, and a union of asylum officers, among others. The administration said that “at least two organizations and other individual commenters” supported the rule but that the remainder of the responses were predominantly critical.
Among the organizations that opposed the rule was the National Citizen and Immigration Services Council 119, which represents the U.S. immigration agency’s 14,500 employees, including its asylum officers.
The union stood against the entire policy and highlighted portions that were “particularly egregious,” such as the provision making it easier for unrepresented migrants to be penalized for filing “frivolous,” or legally baseless, asylum requests. It also criticized the revised definition of “persecution,” which would exclude individuals who faced violent threats but weren’t yet physically harmed.
The policy also requires individuals who travel through other countries besides their own en route to the U.S. to explain why they didn’t first seek shelter in those countries.
Benjamin Johnson, the executive director of the American Immigration Lawyers Association, rebuked the finalized policy in a statement provided to Law360.
“Fleeing life-threatening danger for lasting safety is a herculean effort — attaining that safety should not be, and the U.S. government certainly should not be erecting impassable legal walls blocking asylum entirely,” Johnson said. “This new rule raises the bar for asylum screenings and eventual long-term relief so impossibly high that it effectively shutters the U.S. asylum system.”
Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, told Law360 on Thursday that his organization is reviewing the final rule to assess if it contained much of the same of what the Trump administration first proposed. If the final policy is “substantially the same,” as the federal government described, then Lambda Legal will ask a federal court to strike the rule down, Gonzalez-Pagan said.
The administration spent much of the final, 419-page rule disavowing the critiques. It batted away arguments that the new eligibility bars would lead to categorical denials of entire groups of asylum-seekers, instead stressing that claims for protection would be evaluated on a case-by-case basis.
“[The critics] misstate, in hyperbolic terms, that [the policy] ends or destroys the asylum system or eliminates the availability of humanitarian protection in the United States. The [proposed rule] does nothing of the kind,” the departments said.
The departments further defended their authority to enact the policy, saying that Attorney General William Barr and acting Homeland Security Secretary Chad Wolf were providing guidance on the “many critical, yet undefined” asylum terms and were within the limits of their power.
Wolf’s authority to lead DHS and issue policy is currently being disputed in court. A federal judge in New York has already ruled that Wolf was illegally appointed and struck down Wolf’s policy narrowing the Deferred Action for Childhood Arrivals program.
The administration did include some changes from the proposed rule to allow narrow exemptions to a section cracking down on reopening cases based on ineffective counsel and another section over discretionary factors that could negatively impact an asylum claim.
The rule will take effect in 30 days, right before President-elect Joe Biden is set to take office. Should his administration seek to pull back the rule, it would have to go through the normal regulatory process to do so — with a proposal and a notice and comment period for the public. That procedure could take months or years, according to Gonzalez-Pagan.
The American Immigration Council and the American Immigration Lawyers Association jointly said the rule “spells death” for the asylum system and called on the incoming Biden administration to rescind the rule.
–Additional reporting by Suzanne Monyak. Editing by Daniel King.
Comments are closed