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ICYMI: Dara Lind: “Trump’s Asylum Ban Could Apply Retroactively to Thousands of Migrants Even Though Officials Promised It Wouldn’t”

 

Dara Lind, writing for ProPublica, reveals the latest development in the Trump administration’s inhumane and xenophobic policies: Asylum-seekers, forced to return to Mexico to await their hearings under the administration’s “Remain in Mexico” policy, may now be ineligible for asylum because of their stint in Mexico. 

As Lind explains, “The source of the confusion is that the asylum ban applies to migrants who ‘enter’ the U.S. after July 16. Technically, a migrant who has already come to the U.S. to ask for asylum, been sent to Mexico to wait, and comes back into the U.S. to attend his or her court date is ‘entering’ again. The text of the regulation isn’t clear about whether the ban only applies to a first entry, or to any entry into the U.S. after that date.” 

The administration, through convoluted, contradictory and overlapping policies, may be making the vast majority of people who tried to apply for asylum even before the Trump asylum ban was proposed ineligible for asylum, making it impossible for them to comply with current law because of the new law they had no way of knowing about and complying with before it was in place. This is a classic example of unfair and unlawful retroactivity of law.

According to Douglas Rivlin, Director of Communication for America’s Voice: “The bottom line for Trump and the Republicans is to prevent asylum seekers from ever setting foot in the U.S. and to bar them from having their cases heard in a legitimate U.S. court to evaluate if they qualify under U.S. and international law for asylum. In their zeal and reckless pursuit of this goal, Republicans and Trump have made the asylum process next to impossible for almost everyone – with no regard for whether the individuals involved are fleeing terror and persecution and qualify for asylum under our law.”

Excerpts from the ProPublica piece Trump’s Asylum Ban Could Apply Retroactively to Thousands of Migrants Even Though Officials Promised It Wouldn’t are included below: 

Thousands of migrants who agreed to wait in Mexico for their asylum hearings in the United States are now finding out they may not be eligible for asylum at all.

They’re stuck at the Kafkaesque intersection of two Trump policies designed to crack down on those seeking humanitarian protection. First, when they came to the U.S. to seek asylum earlier this year, they were given court dates but forced to wait in Mexico for their hearings.

Then, in July, the Trump administration issued a regulation that banned asylum for any non-Mexican migrant who entered the U.S. from Mexico.

At the time, the Trump administration asserted that people who had already been caught up in the older Trump policy — asylum-seekers who were in Mexico only because the U.S. had already sent them back there to wait — wouldn’t be subject to the new ban. (Asylum-seekers who were still waiting at official border crossings to present themselves legally were barred, as ProPublica reported at the time, but the administration said that those who already had court dates were not.

…Under the Migrant Protection Protocols, otherwise known as the “Remain in Mexico” policy, asylum-seekers have been living in Mexico for weeks or months while they await their U.S. court dates. They’ve faced poor living conditions and danger from kidnappers in the hopes that a U.S. judge will ultimately grant them asylum.

The source of the confusion is that the asylum ban applies to migrants who “enter” the U.S. after July 16. Technically, a migrant who has already come to the U.S. to ask for asylum, been sent to Mexico to wait, and comes back into the U.S. to attend his or her court date is “entering” again. The text of the regulation isn’t clear about whether the ban only applies to a first entry, or to any entry into the U.S. after that date.

When the regulation went into effect, however, officials from both the DOJ and DHS said, definitively, that any migrant who had entered the U.S. before July 16 — whether or not they were forced to wait in Mexico in the meantime — would still be eligible for asylum under the new rule.

A DOJ spokesperson told ProPublica at the time that it would not apply to those already in the Remain in Mexico program. A DHS spokesperson said the agency would defer to the DOJ’s interpretation.