Trump Issues New Rule that Prevents Individuals Who Crossed the Southern Border Without Inspection from Applying for Asylum
General Background for Asylum
Asylum refers to the process of applying for protection in order to avoid harm in one’s country of origin. Asylum (or refugee law) provides protection against human rights violations, namely being harmed in your country of origin based on one of the following protected grounds:
- race,
- religion,
- nationality,
- political opinion or
- membership in a particular social group.
Notably, asylum is not for other reasons someone might be harmed in their country, such as general violence. The particular social group ground for asylum has broadened the number of individuals eligible for asylum since it encompasses a number of groups that are harmed in their countries for reasons that are not encompassed by the other stated grounds (race, religion, nationality, political opinion).
An asylum seeker is one who applies for asylum either at a port-of-entry into the U.S., or when already within the U.S. In contrast, a refugee refers to a person who has already met the legal requirements for resettlement outside their country, as determined by the United Nations.
Current Process and Restrictions for Applying for Asylum
A person can apply for asylum at a U.S. port of entry (but see below), once they are in the U.S. or once they are placed in deportation proceedings. An application for asylum, however, must be made within one year of entering the U.S. This is called the “one-year” requirement. If a person does not file within one year, and does not meet the exceptions for filing late, they are not eligible for asylum, only “withholding of removal.” One is only granted withholding of removal if they present a much stronger case than needed for asylum, and withholding of removal does not provide a path to citizenship like asylum, so it is a far inferior (and harder to obtain) form of relief to stay within the United States.
There is currently no limitation on applying for asylum based on entering the country illegally. Many individuals, particularly from Central America, will never have the chance to file for asylum if they are not first found within the U.S. after crossing the border without proper documentation. This is because it is very challenging to apply for asylum at a port-of-entry. CBP (customs and border protection) simply does not have the resources or desire to interview every asylum applicant at a port-of-entry, so most are simply turned away.Here is a good resource that describes the challenges of applying for asylum at a port-of-entry.
What Trump Has Done – Status of the New Rule
Trump has issued a presidential proclamation in conjunction with a new joint rule from Department of Homeland Security and the Department of Justice to bar people who enter the country without inspection through our Southern border from applying for asylum. The rule, like the early Travel Ban, will be in effect for 90 days, but it will also be reviewed and potentially extended at the end of this period.
The primary problem with the rule is that it directly contradicts our treaty obligations and current federal laws that implemented these obligations regarding asylum law.
Section 208 of the INA (Immigration and Naturalization Act) explicitly states:
“Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum . . .”
President Trump, just like he did with the Travel Ban, justifies the rule based on “national security grounds” and based on his right, in the INA, to suspend the entry of certain classes of aliens that would be “detrimental to the interests of the United States, for such period as the President deems necessary.” INA 212(f).
Legality of the New Rule
Groups have already sued the administration asking that Federal Courts invalidate the rule. Similarly to the travel ban, whether the rule is upheld will likely hinge on the President’s national security justification for the temporary ban.
As the Proclamation states: the influx is primarily from Northern Triangle countries which are incredibly violent, unstable, and largely controlled by criminal gangs. Given these circumstances, many of these individuals do have strong claims for asylum. Though the Department of Justice has already attempted to weaken many of these claims by characterizing them as “victims of general violence by private actors”, rather than people who have suffered harmed based on belonging to a particular social group. The Attorney General did this by issuing a legal opinion called Matter of A-B. The scope and legality of Matter of A-B- is currently being challenged in both immigration and federal courts.
Because asylum protects fundamental human rights (not to be harmed in your country of origin based on certain protected reasons), INA 208 (the Federal law that establishes asylum) does not prevent a person from applying even if they did not enter at a port-of-entry.It is clear that President Trump and his supporters simply do not like our asylum laws as they now stand. For this reason, they are seeking to deter asylum seekers by any means possible. This is another stark example of Trump not accepting the fact that he does not have the power to establish new federal laws, which is allocated to Congress. It further demonstrates his fundamental disrespect for the role of each branch of our government. Asylum laws can be changed, but this requires a new law, passed by both the house and the Senate. It is not for the President to usurp the power of our legislative branches whenever we see fit. While his pals Putin and Kim Jong Un can do this, we have a different system here.