President Donald Trump’s promised sweep of “millions” of undocumented immigrants across the United States failed to materialize over the weekend, but the issuance of stringent restrictions on access to the U.S. asylum system on Monday could pose an even greater risk to those fleeing violence and persecution in Central America.
In a joint statement issued by the Department of Homeland Security and the Department of Justice, the administration notified the public that it will publish an interim final rule adding “a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border.”
The rule, apparently targeting the massive influx of asylum seekers from Central America, would prevent almost every migrant from pursuing an asylum claim in the United States if they did not first apply for asylum protections in the country or countries through which they traveled on their way to the U.S. border.
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“This interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border,” said Acting Secretary of Homeland Security Kevin K. McAleenan, who added that the rule is intended to discourage migrants from traveling through Mexico to reach the United States.
Advocacy organizations were swift to condemn the Trump administration’s latest attempt to weaken the nation’s asylum system, and vowed to fight the proposed rule change in court.
“The Trump administration is trying to unilaterally reverse our country's legal and moral commitment to protect those fleeing danger,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project. “This new rule is patently unlawful and we will sue swiftly.”
The Refugee and Immigrant Center for Education and Legal Services (RAICES) said that the rule change amounts to “ending asylum protections for all minorities,” and vowed to fight the proposal “in the courts and in the streets.”
“It’s an Asian ban. It’s a Muslim ban. It’s a Latino ban. It’s a Black ban,” the organization said in a release. “It’s racist and wrong on every level.”
Aaron C. Morris, executive director of Immigration Equality, a nonprofit that advocates for LGBT people in the immigration system, called the proposed rules “reprehensible.”
“It is their most blatant attempt so far to dismantle the asylum system altogether in clear violation of domestic and international law,” Morris saiad. “LGBTQ people have remarkably strong asylum cases due to the high risk of persecution in their countries of origin. Denying them the chance to apply for protection in the United States will lead to senseless and avoidable violence and death.”
Under the U.S. Immigration and Nationality Act (INA), as well as a host of international treaty agreements, all migrants who enter the country by any means are entitled to apply for asylum protections if they claim that they fear persecution or violence in their home countries. Refoulement, the legal term for the forcible return of asylum-seekers to countries where they face potential persecution or torture, is illegal under both the INA and international law.
Attorney General William Barr said in a statement that the proposed rule changes will sidestep these barriers, citing a section of the INA that allows the government “to enhance the integrity of the asylum process” by placing additional restrictions on asylum seekers.
“The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border,” Barr said, an argument that has been met with stiff legal challenges in other suits against the administration’s unilateral attempts to change the asylum system.
Under the proposed rule change, migrants must satisfy at least one of three stipulations to be allowed to seek asylum in the United States: have applied for asylum protections in at least one country through which they transited en route to the United States, and been denied; prove that they are a victim of human trafficking; or prove that they traveled to the United States exclusively through one of a few dozen countries that are not party to international treaty agreements regulating the treatment of asylum seekers.
But by discouraging asylum seekers from using legal means of entry, advocates said that the rule change will likely increase the number of people turning to human traffickers to get into the country.
“Every time there’s a new law enforcement initiative, traffickers and smugglers are very adept at adapting it to their own advantage,” Wendy Young, executive director of Kids In Need of Defense, told The Daily Beast.
“If people perceive that it’s too hard to get to the border to present themselves... they may fall into the trap” of seeking assistance from human traffickers, Young added, which means that the rule change could result in the U.S. government “inadvertently fueling transnational criminal activity.”
In addition to exacerbating the problems that the Trump administration hopes to address—a common issue with the White House’s immigration policies—the rule change contains a fairly glaring contradiction. One of the treaties named in the proposed rule change, the United Nations Convention and Protocol Relating to the Status of Refugees, prevents the forcible return of asylum-seekers to countries where they face persecution, torture, or death—a likely result if the proposed rule were to be implemented.
The rules are the latest attempt by the Trump administration to curb access to asylum system, which the president has called “ridiculous” and riddled with “major loopholes.” Other moves to discourage asylum have included threatened tariffs against Mexico if it failed to interdict migrants headed north, the so-called “Remain in Mexico” policy barring asylum-seekers from entering the United States to seek asylum, and the aforementioned nationwide raids on undocumented immigrants, first issued as a threat if Congress did not pass new asylum restrictions.
Even among those other attempts to limit access to asylum, advocates called the rule change uniquely dangerous.
“This rule reaches a shameful new low,” said Archi Pyati, chief of policy at the Tahirih Justice Center, which provides legal services to immigrant women and girls fleeing gender-based violence and persecution. “Children fleeing life-threatening circumstances, women fleeing rape and severe domestic violence, families trying to avoid persecution—none will be allowed to seek asylum. This blanket rejection of asylum claims simply because someone approaches the southern border is inhuman and unfair.”
