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The U.S.’ asylum system has been around for a long time. And now its existence is in jeopardy.
After millions of people were displaced following World War II, the United Nations set international standards for the rights of refugees in 1951. The U.S. signed on to the protocol 16 years later. Then, in 1980, Congress passed the U.S. Refugee Act, establishing a system that allowed migrants escaping persecution at home to seek refuge in the United States.
The U.S. asylum system allowed them to seek protection here if they were fleeing persecution based on their race, religion, nationality, political opinion or membership in a particular social group. Asylum seekers typically present themselves to authorities at a port of entry. Once there, an official conducts the first step of the process: an interview to decide whether the person has a credible fear of returning home. Those who pass the interview are allowed to stay in the country while their asylum cases head through immigration court.
As the Migration Policy Institute put it, the government “succeeded for many years in delivering fair and timely decisions on asylum cases.”
But within the last decade, the asylum process began to buckle under a growing backlog as thousands of Central Americans fled growing gang violence and corruption and headed to the U.S. border for safety. The Obama administration chose not to release many asylum-seeking families while they awaited their claims, instead building family detention centers to hold them.
Then President Donald Trump got elected and put White nationalist Stephen Miller in charge of immigration. Under their leadership, the administration has viewed asylum as an overly generous benefit that’s being exploited by immigrants. Over time, the administration has relentlessly targeted asylum to the point that, in the pandemic era, the system has been completely shut down
The administration separated families to deter asylum seekers, began sending those with claims to live in makeshift camps in Mexico, forced migrants to claim asylum in every country they passed through before coming to the U.S. and sent drastically more asylum seekers into prolonged detention. And ultimately, it has completely shut down the southern border during the pandemic – indefinitely.
With so much going on, it’s easy to lose sight of how much U.S. asylum has changed under Trump. So let’s take a step back to take stock of some of those key policy changes:
Shutting down the border: At the start of the pandemic, Trump essentially blocked immigration at the border under Title 42 of the U.S. Code, which bans immigration if there is a "serious danger of the introduction of … disease into the United States." With the border shut down, asylum seekers are denied the chance to even make their case. Even as Trump has pressed to reopen the country swiftly, his administration has extended the border shutdown at least through July, Politico reports. “Do you expect Trump to reopen borders before an election? My guess is no. He ran on closing borders, on a wall and keeping Mexicans out,” Jorge Guajardo, former Mexican ambassador to China, told Politico.
Justice Department rulings cut back on asylum protections: In June 2018, the Trump administration limited asylum claims based on domestic violence or gang violence. In a decision known as Matter of A-B, then-Attorney General Jeff Sessions declared that migrants fleeing domestic violence were not eligible for asylum. “The asylum statute does not provide redress for all misfortune,” he wrote. But a federal judge blocked the new policy in December 2018, finding that it was “arbitrary and capricious and contrary to law.” Still, the Justice Department continued to chip away at asylum protections. Last summer, Attorney General William Barr announced that immediate family members of asylum seekers facing persecution back home would no longer be eligible for relief. The decision was made in the case of a Mexican man, known in court records as “L-E-A,” who “sought asylum after his family was threatened because his father did not allow drug cartel dealers to use his store for business,” NPR reported.
Family separation was explicitly about deterring asylum seekers: In the summer of 2018, the government began prosecuting every migrant who crossed the border without authorization, resulting in a wave of family separations.The Trump administration used the practice as a deterrent to migration, hoping that the policy would discourage other migrants from seeking asylum. On June 20, 2018, after enormous backlash from immigrant advocates and politicians, Trump ended the practice. A few days later, U.S. District Judge Dana Sabraw ordered the government to reunite the nearly 3,000 children who were torn apart from parents that summer. The Department of Health and Human Services’ inspector general’s office later identified family separations happening as early as 2017. And some separations continued after 2018. Last January, I told you the story about a Salvadoran father who was separated from his two children after crossing the border into Texas. Immigration officers accused the man, Mr. A, of being an MS-13 gang member, even though his lawyers compiled a stack of evidence against the government’s accusations. Six months later, the family was reunited.
In an unprecedented move, “Remain in Mexico” sends asylum seekers out of the U.S. while they wait: Under the Migrant Protection Protocols program, more commonly known as Remain in Mexico, more than 60,000 asylum seekers have been forced to wait across the border while their cases are pending. Former Homeland Security Secretary Kirstjen M. Nielsen referred to the program, created in January 2019, as a “humanitarian approach” that would “end the exploitation of our generous immigration laws.” But immigration lawyers, advocates and Democratic lawmakers argue that the policy violates asylum laws that explicitly state migrants can come to the U.S. to seek protection from harm. As of mid-May, Human Rights First has documented at least 1,114 public reports of killings, torture, kidnapping and other attacks against asylum seekers waiting in Mexico.
Asylum seekers are forced to seek protection in another country: Last year, the U.S. entered into “safe third-country” agreements with Honduras, Guatemala and El Salvador that would require migrants on their way to the U.S. to first claim asylum in countries that lack the proper resources and infrastructure to help them. If asylum seekers arrive at the U.S. border before first seeking protection in one of these countries, they’re subject to deportation. Only the agreement with Guatemala went into effect. “We’re talking about forcing people to remain in these countries where the government is unable to protect them,” Ursela Ojeda of the Women’s Refugee Commission told Vox. This month, the U.S. Court of Appeals for the Ninth Circuit struck down this Trump policy after finding that the administration did “virtually nothing” to ensure that other countries would be safe for asylum seekers. It’s likely that the Trump administration will appeal to the U.S. Supreme Court, but the ruling had little immediate impact, as the border is already shut down.
Narrowing asylum: Earlier this month, the Departments of Justice and Homeland Security submitted 161 pages of regulations to the Federal Register that would further block asylum for people fleeing gender-based or political persecution, as well as gang violence. Judges would have the power to deny asylum without ever allowing migrants the opportunity to appear in court. The new rules, which are now under a comment period in the Federal Register before they go into effect, would also restrict gender-based asylum claims, as well as claims for immigrants fleeing political persecution. Applications from asylum seekers subjected to gang violence in their home countries would also be denied. The government would also be able to deny protections to any immigrant who spent 14 days in another country without first seeking asylum there.
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