The Trump administration is proposing a new regulation that all but guts the American asylum system enacted by Congress decades ago, but without a single act by Congress. The American public will have only 30 days to comment on the 161 page draft regulation, cutting in half the customary time the federal government provides the public to comment on proposed regulations, especially one as complex and unprecedented as this one. This regulation comes after more than three years and over 30 separate actions by this administration to end asylum, which by early this spring resulted in just two people being granted asylum over an-almost two month period. This regulation takes the more than 30 actions already taken on asylum and puts them on steroids. The result — the gutting of the asylum system, again.
Credible Fear Standard So High, It Slams the Door Shut
The existing law’s first step in seeking asylum at the border or port of entry is to present a preliminary claim of credible fear of persecution before an asylum officer who determines whether there is a significant possibility of eligibility. If approved, the applicant moves to the second step and is provided an opportunity to prepare a case with necessary evidence required under the law.
Under this proposed regulation, the credible fear standard would be turned on its head. If an asylum seeker cannot provide enough evidence at the first step to prove their claim — as little as 24 hours after an arduous journey to the border — they would be barred from the next step. It’s a classic “Catch 22”: No asylum claim allowed until you can first prove it.
If you get through the door to get on the asylum track’s second step, this regulation creates high hurdles and other obstacles.
Effective Ban on Central American Asylum Seekers Through “Transit Ban”
While asylum seekers of other nationalities transit through Central America, this regulation is clearly aimed at blocking Central American refugees, most of whom travel on foot through Mexico and other countries. If an asylum seeker transits through at least one other country without seeking asylum there first, they would likely be denied under this regulation as a “matter of discretion.”
Defies Congressionally Enacted Law by Virtually Banning Asylum Seekers Who Enter in Between Border Checkpoints
If the “transit” provision fails to block an asylum seeker, there is yet another obstacle — this regulation makes it likely that anyone who seeks asylum in between border checkpoints would be denied as a “matter of discretion” unless they can prove “immediate flight from persecution or torture in a contiguous country,” which under MPP over the last year has been extremely difficult.
Guts Asylum Protection for Women and Others Fleeing Domestic and Gang Violence & Other Forms of Non-State Actor Violence
Another obstacle to asylum under this regulation resurrects the ghost of former Attorney General Jeff Sessions who tried to ban asylum claims for women and others fleeing domestic and gang violence in 2018. This proposed regulation does just that by, “in general,” barring such asylum claims, and essentially defining domestic violence as an “interpersonal dispute[]” that should be disregarded and unrecognized for protection in our asylum law. It also generally bars most asylum claims based upon non-state actors, even if the state refuses to take action and protect its citizens from such non-state actors.
Guts Due Process
As if the above obstacles were not enough to bar most everyone from asylum, this regulation removes even more due process from a U.S. immigration court already in shambles. Under this regulation, a judge can deny a case “pretermit” — literally deny a case on paper without a fair day in court. Never mind that the vast majority of detained asylum seekers are unrepresented by attorneys (almost 70%), that non-detained asylum seekers are represented at only 45-75% (depending upon the month in recent years), that only 1.2% of asylum seekers waiting in Mexico for immigration hearings under MPP are represented, and the fact that even without this new “pretermit” process, represented asylum seekers are five times more likely to obtain asylum protection than unrepresented asylum seekers who have only a one in ten chance of success.
Permanent Bar to Asylum for Failing to Know Asylum Law
Under this proposed regulation, those who file asylum claims without understanding asylum law and the requirements necessary to apply and be granted, could be permanently barred from asylum, even if they attempt to withdraw the application after being told they are not their application is “clearly foreclosed” by the law. Calling this a “frivolous” filing, the only way out would be to depart the U.S. within 30 days, waive any right to appeal, and withdraw the application–essentially forcing asylum applicants back into the arms of their persecutors because they didn’t know the law. Never mind the complexity of asylum law and the fact that so few people are represented by attorneys (explained above).
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “For three and a half years, the American asylum system has been dying a death of a thousand cuts, but this regulation is a guillotine. If the 30+ asylum actions by the Trump administration over the last three years were not enough, this proposed regulation makes it extremely clear that the Trump administration intends to turn off the ‘lamp’ and lock the ‘golden door.’”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “For three-plus years the Trump administration has engaged in a ruthless, methodical dismantling of U.S. asylum and refugee law. Whether it’s the ability of women to seek safe haven from brutal domestic violence, migrants fleeing horrific gang violence or even the basic right to apply for asylum in the U.S. itself, the Trump administration has all but obliterated U.S. asylum protections without Congress changing a word of the law. The new proposed asylum rule guts the U.S. asylum system. Simply put, the proposed asylum rule is an attack on core American values.”
