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President Trump’s Proposed Asylum Changes Raise Concerns

12 Jul

Federal law has for decades legally allowed individuals from other countries to apply for asylum if they have a well-founded fear of persecution or torture based on a protected ground of their race, religion, nationality, political opinion, or membership in a particular social group. Winning asylum is already very difficult, with a denial rate in 2018 of about 65% in the immigration courts. Our asylum laws place a high burden on applicants to prove not only that they will be persecuted based on a protected ground, but also that their government is unable or unwilling to protect them and they cannot resettle elsewhere. Our Federal laws also require the government to adjudicate asylum cases within 180 days and restrict work permits to asylum seekers whose cases have been pending more than 180 days. Irrespective of this, President Trump is ordering the top immigration officials to take more steps to toughen and speed up the process for seeking asylum in the United States.  

As a further escalation of President Trump’s hardline immigration agenda, in a memo issued on April 29, 2019, he ordered the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would impose a fee on applying for protection, accelerate court decisions and limit access to other forms of relief, and bar anyone who entered or even attempted to enter the United States unlawfully from qualifying for work authorization until their asylum applications are approved. These measures, which are an attempt to stem the surge of migrants at the southern border, may actually increase the number of applicants as people may rush to the United States to apply for asylum before any new hardline changes occur.

The administration has often characterized these individuals as criminals and fraudsters who are trying to game the system; however, most of the migrants currently coming to our southern border appear to be parents with children who are fleeing from El Salvador, Honduras, and Guatemala, which have some of the highest homicide rates in the world. While some are trying to escape extreme poverty and are seeking better opportunities in the United States, which are not grounds for asylum protection, many are fleeing for their lives and fear persecution or death in their home countries. These genuine asylum seekers, upon arrival at a U.S. port of entry, have the legal right to request refuge from persecution, and they deserve our compassion, not additional roadblocks.   Making these asylum seekers wait in Mexico, especially in cities like Nuevo Laredo which have received travel warnings by the U.S. Department of State as unsafe for travel, is contrary to the purpose of immigration asylum law, which is to provide protection.

The proposed change to accelerate court asylum hearings would put additional strain on the already overwhelmed immigration courts.  The national backlog has reached 850,000 pending cases that include reopening cases that were previously administratively closed because the foreign national was not a convicted criminal or violent offender. Immigration judges would be required to reshuffle their dockets to prioritize these cases, and those who have already been waiting years for their day in court would have to wait even longer. 

Proposing and implementing regulations typically takes months and requires a period of public comment, but the administration could try to fast track these changes by declaring an urgent need. If any of these proposed changes ever become a regulation, they most certainly will be challenged in the federal courts.