The Trump administration decreed sweeping changes to U.S. asylum policies Monday, in a move aimed at curtailing the soaring number of Central Americans who have arrived across the southern border seeking refuge.
A joint statement from the Department of Homeland Security and the Department of Justice said the Trump administration on Tuesday will publish an interim final rule that will sharply restrict access to the U.S. asylum system for anyone who did not seek protection from other countries through which they transited before reaching the United States.
The move is almost certain to trigger swift legal challenges, because the U.S. Immigration and Nationality Act (INA) contains broad provisions allowing foreigners who reach U.S. soil to apply for asylum if they claim a fear of persecution in their native countries. An American Civil Liberties Union attorney who has been challenging Trump administration immigration policies in court said the organization would seek an injunction “immediately.”
Trump administration officials say the executive change to U.S. immigration law is needed to stem the soaring number of asylum claims filed by border crossers, particularly from Central America. Administration officials have claimed that many asylum seekers are taking advantage of the safeguards to gain easy entry into the United States.
The majority of those who claim fear at the U.S. southern border are granted access to the U.S. immigration system, and many are released from custody while their claims are pending in U.S. courts. Because the courts are clogged with a backlog of nearly one million cases, it can take months or years before asylum applicants go before a judge.
Administration officials point to the relatively low number of Central American applicants who are ultimately granted asylum by the courts — fewer than 20 percent — as evidence that a majority of their claims are without merit.
U.S. border agents are on pace to make more than a million arrests this year, the highest number in more than a decade, and administration officials say “loopholes” in the asylum system have become a powerful magnet for migrants seeking a better life.
Trump threatened to impose tariffs on Mexico last month to compel its government to interdict more migrants, and the accord reached between the two countries included a provision to partner on a regionwide overhaul of asylum policies. In particular, the United States is seeking more latitude to swiftly deport border-crossers who claim fear of persecution, and the deal with Mexico allowed for the expansion of the Migration Protection Protocols, which require asylum seekers to wait outside U.S. territory while their claims are processed.
U.S. officials also have been in talks with the Guatemalan government on a deal that would require its government to provide refuge to asylum seekers from Honduras and El Salvador, but the country’s highest court has blocked the plan. President Jimmy Morales canceled a planned trip to meet with President Trump in Washington this week.
The changes announced Monday, if implemented, potentially would give the Trump administration broad power to deny asylum to a wide range of migrants seeking refuge. In the case of an asylum-seeker from El Salvador, for example, if an applicant traveled through Guatemala and Mexico to reach U.S. soil, that migrant would first have to seek asylum in either of those two countries.
Less clear is whether the United States would be able to deport such applicants back to the nations they pass through along their journey, because the transit nations would have to agree to take them and provide protection.
White House, Justice Department and DHS officials briefed congressional staffers about the asylum change during a conference call Monday morning, during which Democratic aides repeatedly questioned the administration about the policy’s legality and whether it is consistent with U.S. law, according to a person on the call.
The administration insisted that it had the authority under the asylum provisions of the INA, although officials did not go into specifics.
The administration said the new changes would allow applicants to seek U.S. protections if they are denied refuge by other nations before reaching U.S. territory, if they are a victim of human trafficking or if they arrive via a nation that is not a signatory to international treaties against torture and persecution.
Lee Gelernt, the ACLU attorney who has led efforts to contest the Trump administration’s immigration policies in court, said the organization will challenge the new asylum rule, arguing that it is inconsistent with U.S. and international law.
“The administration is effectively trying to end asylum at the southern border,” Gelernt said. “The administration has already tried once to enact an asylum ban for individuals who cross between ports of entry and the courts struck it down because Congress has made a commitment to provide protection to individuals regardless of where they cross. The administration is now attempting an even broader bar on asylum based on which countries you transited through, but Congress made clear that it’s irrelevant whether you had to walk through other countries to get to safe haven in the United States.”
Trump administration officials on Monday characterized the move as a stopgap measure, applied in the absence of congressional changes to U.S. immigration laws.
“Until Congress can act, 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, leading to fewer individuals transiting through Mexico on a dangerous journey,” DHS Acting Secretary Kevin McAleenan said in a written statement. “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.”
Attorney General William P. Barr said the United States is a “generous country,” but the U.S. immigration court system — run by the Justice Department — is being “completely overwhelmed” by the flood of applicants crossing the southern border.
Barr said the change would curb what he called “forum shopping by economic migrants,” referring to what immigration restrictionists say is a growing trend of refuge-seekers attempting to reach their most-desired destination rather than the first place that provides a safe haven.
“The large number of meritless asylum claims places an extraordinary strain on the nation’s immigration system, undermines many of the humanitarian purposes of asylum, has exacerbated the humanitarian crisis of human smuggling, and adversely impacts the United States’ ongoing diplomatic negotiations with foreign countries,” a joint government statement read. “This rule mitigates the strain on the country’s immigration system by more efficiently identifying aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.”