Attack on Asylum

The 2018 Asylum Ban: What you need to know

On November 9, President Trump issued a proclamation that places severe restrictions on individuals seeking asylum through the southern border of the United States. This marks another executive action attacking refugees and asylum seekers seeking to enter our country, following the precedent set by the Muslim Ban and dropping the number of admitted refugees to a mere 30,000 per year.

The proclamation follows the year-long dismantling of the asylum system and the enabling of the long-term, indefinite detention of asylum-seeking mothers, fathers, and children. This summer the administration tore mothers and fathers from their children and prosecuted asylum seekers for unlawful entry in contravention of our obligations under the Refugee Convention. Former Attorney General Jeff Sessions unilaterally reopened multiple court decisions to strategically dismantle asylum protections for the most vulnerable, including survivors of domestic violence. Meanwhile, immigration judges are being stripped of their independence, from tools to manage their dockets to mandating quotas. Not only is this attack on asylum and asylum seekers happening in the legal sphere, but the administration is working on sending 5,200 military troops to the US-Mexico border.

The proclamation work jointly with a Department of Homeland Security interim final rule, which was published without the generally required notice and comment period. This rule governs eligibility for asylum and screening procedures for those subject to a new presidential proclamation.

What exactly do the proclamation and joint rule say?

Effective November 9, 2018, anyone who crosses the border without inspection cannot apply for asylum.  The proclamation states that only those who present themselves at a port of entry – an airport, sea port, or physical border crossing point, such as a bridge – will be allowed to ask for asylum.

Asylum-seekers who cross the border at the Rio Grande, desert, or some other manner will not be allowed to seek asylum. Instead, they will only be eligible for more harder-to-prove, more restrictive humanitarian remedies: Withholding of Removal and protection under the Convention Against Torture.

This proclamation and joint rule violate the Immigration and Nationality Act, the law that  allows anyone who is in the U.S. to apply for asylum, regardless of whether or not they crossed at a port of entry, like a bridge.

What is the impact?

Despite the Regulations, Asylum Seekers Will be Turned Back at Ports of Entry

• Asylum seekers are routinely turned back from ports of entry by Customs and Border Protection (CBP) officers. The“Turnback Policy” tactics include telling asylum seekers that the U.S. is no longer providing asylum, that there is no room for them, and that they should come back later. CBP officers have also yelled at, harassed, and assaulted asylum seekers and threatened to take away their children. Watch a video of turnbacks here.
• The U.S. Office of Inspector General – the government’s own oversight agency – has documented asylum-seekers being turned back at the arriving port of entry, leading some “who would otherwise seek legal entry into the United States to cross the border illegally.”

• Even when asylum-seekers manage to enter at a point of entry, CBP officials use intimidation and deception to coerce asylum seekers into giving up their asylum claims.

Legitimate Asylum Seekers Will Not Get Protection

• Individuals cross the border between points of entry for a myriad of legitimate reasons: they may not know that there is another way to enter the country, they may fear waiting in a dangerous border region for the time it takes to be processed through ports of entry, they may be trafficked against their will, they may be under duress or stress, or they may be children without decision-making power. For these reasons, and many more, asylum-seekers will choose to cross between ports of entry, where they will no longer be eligible to apply for asylum
• Withholding of Removal and protection under the Convention Against Torture (CAT), while important humanitarian protections, are not a substitute for asylum. They have a higher burden of proof, which means that individuals who might otherwise have been granted asylum would lose claims under Withholding or CAT. Furthermore, these protections do not provide a safety net nor the long-term protection that asylum does. For many asylum seekers and refugees, access to public benefits helps them get on their feet and acclimate to a new country and language. This assistance, however, is not available to those granted withholding of removal or CAT. Neither are they eligible to become lawful permanent residents and, later, citizens.

The Proclamation Will Lead to Increased and Prolonged Detention

• Individuals and families who apply for asylum at a border crossing point will be classified as “arriving aliens” and can only leave detention upon a discretionary grant of parole. Yet under the Trump administration, parole grant rates have plummeted more than 90 percent to “nearly zero.” In July 2018, a judge ruled that the government cannot deny parole without an individualized assessment for each person. Yet recent statements from the President indicate that he still intends to use indefinite detention to deter asylum seekers.
• Detention dramatically reduces an asylum seekers chance of being represented, and without having an attorney detained asylum seekers have about a four percent chance of winning their cases. This has nothing to do with the validity of their claims, but with the complexity of the immigration court system which requires significant evidence and complex legal arguments. Without an attorney, only about four percent of individuals in detention win their claims.

Is this lawful?

The President’s actions are unlawful. He has acted unilaterally to dismantle the protections clearly stated in Section 208(a) of the Immigration and Nationality Act (INA), which allows any individual who is physically present in the United States or who arrives in the United States at a port of entry or otherwise may apply for asylum, irrespective of the person’s immigration status.

Furthermore, the President has circumvented federal rule-making process – which requires notice to the public and opportunity to comment – and instead imposed immediate changes to the rules governing asylum claims.  An agency only has the authority to do this upon “good cause,” which includes national emergencies, public interest, and threats to national security. The Department of Homeland Security also alleges that they can forego the notice and comment period under good cause and the foreign affairs exception. However, these circumstances – families fleeing from persecution – do no warrant such an exception.

The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a federal lawsuit challenging the asylum ban proclamation, charging the administration with violating the Immigration and Nationality Act as well as the Administrative Procedure Act. Read the complaint here.  The Southern Poverty Law Center has also filed a lawsuit against the administration in October, alleging that the Turnback Policy is directly attributable to high-level Trump administration officials.