WASHINGTON – The Trump administration decreed sweeping changes to U.S. asylum policies Monday, a move aimed at slowing the influx of Central Americans who are crossing the Mexico border seeking refuge.
U.S. authorities will sharply restrict access to the U.S. asylum system for anyone who did not seek protection from other countries as they moved northward toward the United States, according to a joint statement from the Department of Homeland Security and the Department of Justice. The policy shift could result in the Trump administration turning many aslyum seekers back to the countries they transited, including Mexico and Guatemala, largely with the hope of thwarting migrants from attempting to reach the United States in the first place.
Attorney General William Barr said the United States is a “generous country,” but the U.S. immigration court system – run by the Justice Department – is being “completely overwhelmed” by the flood of applicants crossing the southern border.
Barr said the change would curb what he called “forum shopping by economic migrants,” referring to what immigration restrictionists say is a growing trend of refuge seekers attempting to reach their most-desired destination rather than the first place that provides a safe haven.
Critics say the proposed changes attempt to rescind core principles of American immigration law that protect vulnerable asylum seekers from being sent back to persecution in their homelands or other countries. The administration said it will publish an “interim final rule” Tuesday that will promptly take effect.
The move brought immediate threats of legal challenge; the U.S. Immigration and Nationality Act (INA) contains broad provisions allowing foreigners who reach U.S. soil to apply for asylum if they say they fear persecution in their native countries.
Lee Gelernt, an American Civil Liberties Union attorney who has been contesting Trump administration immigration policies in court, said the organization would seek an injunction to block the policy’s implementation, arguing that it is inconsistent with U.S. and international law.
“The administration is effectively trying to end asylum at the southern border,” Gelernt said.
Trump officials say the executive change is needed to halt a flood of asylum claims filed by recent border crossers, particularly from Central America. Administration officials have claimed that many asylum seekers are taking advantage of the safeguards to gain easy entry into the United States, typically surrendering to border agents and stating a fear of harm if deported.
The majority of those who claim fear at the U.S. southern border are granted access to the U.S. immigration system, and many are released from custody while their claims are pending in U.S. courts. Because the courts are clogged with a backlog of nearly one million cases, it can take months or years before asylum applicants go before a judge. In the past five years, asylum applications have nearly quadrupled, Justice Department statistics show.
Administration officials point to the relatively low number of Central American applicants who are ultimately granted asylum by the courts – fewer than 20% – as evidence that a majority of their claims lack merit.
U.S. border agents are on pace to make more than a million arrests this year, the highest number in more than a decade, and administration officials say “loopholes” in the asylum system have become a powerful magnet for migrants who are seeking a better life but aren’t victims of persecution.
Trump administration officials on Monday characterized the move as a stopgap measure, applied in the absence of congressional changes to U.S. immigration laws.
“Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey,” DHS acting Secretary Kevin McAleenan said in a written statement.
“Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits,” he said.
Trump threatened to impose tariffs on Mexico last month to compel its government to interdict more migrants, and the accord reached between the two countries included a provision to partner on a regionwide overhaul of asylum policies. In particular, the United States is seeking more latitude to swiftly deport border crossers who claim fear of persecution, and the deal with Mexico allowed for the expansion of the Migration Protection Protocols (MPP), which require asylum seekers to wait outside U.S. territory while their claims are processed.
The Mexican government on Monday pushed back against the idea that the country would become what is known as a “third safe country” for asylum seekers.
Marcelo Ebrard, Mexico’s foreign minister, called the new U.S. policy “a limitation on the right of asylum with which Mexico does not agree.”
Ebrard said in a news conference that any safe third country agreement with the United States would need to be approved by Mexico’s congress. But Ebrard didn’t say what Mexico would do if Guatemalans are told to apply for asylum in Mexico upon reaching the United States border. He suggested that there was little Mexico could do to change the Trump administration’s policy.
“We can’t take any action because it’s a measure in the domestic sphere of the United States,” he said.
Ebrard took a similar stance in response to the MPP program – known as “Remain in Mexico” – which forces asylum seekers to wait for their U.S. court hearings on Mexican soil. Ebrard suggested the policy had been imposed on Mexico, with no recourse.
Spokesmen for the governments of Guatemala, Honduras and El Salvador did not immediately respond to requests for comment.
Guatemala’s highest court issued three injunctions Sunday to keep President Jimmy Morales from signing a safe-third-country agreement with the United States. A group including three former Guatemalan foreign ministers solicited the injunctions.
On Sunday, the Guatemalan government canceled a meeting between Morales and Trump that had been scheduled for Monday. The government said in a statement that the meeting was canceled due to “speculation and legal proceedings admitted for processing to the constitutional court.” The statement said Guatemala “at no moment considered signing an agreement that would convert Guatemala into a third safe country.”
The changes announced Monday, if implemented, potentially would give the Trump administration far more power to deny asylum to a wide range of migrants seeking refuge from all over the world. In the case of an asylum-seeker from El Salvador, for example, if an applicant traveled through Guatemala and Mexico to reach U.S. soil, that person would first have to seek protection in either of those two countries.
Less clear is whether the United States would be able to deport applicants back to the nations they pass through because the transit nations would have to agree to take them.
“That’s the core question: What are these countries going to do when they receive these individuals?” said Cris Ramon, a senior analyst at the Bipartisan Policy Center who specializes in immigration. “Are they obliged to resettle them? What are the logistics of this process?”
There were also doubts that the move would achieve the kind of deterrent effect Trump is seeking. Migrants who claim a fear of harm could still access the U.S. immigration court system if they potentially qualify for a lesser form of protection – withholding of removal – and the new policy would likely just add layers of bureaucracy to the current system, according to one U.S. asylum officer who spoke on the condition of anonymity because they were not authorized to speak to reporters.
“Nothing will change except more work for asylum officers,” the officer said.
Michael Knowles, president of the American Federation of Government Employees, the union that represents asylum officers, said his members are concerned that the Trump administration’s asylum rule will place individual officers at risk of violating current law or committing human rights abuses.
“It flies in the face of everything we’ve been trained and guided to do in implementing existing law for decades,” Knowles said. “There is nothing in that body of law that says that this is OK. They are twisting the law beyond recognition.”
Knowles said officers have not been informed about how the rule will be implemented.
“Asylum doesn’t mean everyone who knocks on the door gets in, but they are entitled to due process,” Knowles said.
The rule change could undermine protections strengthened after World War II and the Holocaust, when the United States denied entry to Jewish refugees who were sent back to Nazi extermination camps. The premise of the program is to “never again” turn away someone who has an eligible claim for asylum, Knowles said. Undermining those principles sets a dangerous precedent, he said: “If the United States can do this, why not any other country?”
The administration said the new changes would allow applicants to seek U.S. protections under three circumstances: if they are denied refuge by other nations before reaching U.S. territory, if they are a victim of human trafficking or if they arrive via a nation that is not a signatory to international treaties against torture and persecution.