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Understanding How the Trump Administration Is Dismantling Asylum

Recent Immigration Restrictions Threaten Asylum Norms

President Trump has made reducing immigration a priority for his administration, introducing a variety of executive orders – many of questionable legality – targeting different types of immigration throughout his term. The institution of asylum has become one such target, the subject of several policy changes that reduce immigrant and asylee rights. Though many courts have decided many of these new rules are unlawful, the conservative-leaning Supreme Court has generally issued stays in those decisions, allowing the policies to continue in the short-term as appeals are filed and argued.

Asylum is a mechanism through which thousands of immigrants legally live and work and even become citizens of the United States. Below, we review the basics of asylum before covering some of the recent changes the Trump administration has enacted that have the effect of dismantling the asylum system.

What Is Asylum?

Asylum is a type of immigration where a refugee seeks protection in the United States because they justifiably believe they will be persecuted by the government of their home country on the basis of a protected class, including race, religion, nationality, political opinion, or membership in a targeted social group. Congress formally protected asylees in the Refugee Act of 1980.

If you are accepted into the country as an asylee, you are allowed to live and work in the country as well as apply for certain types of government benefits. After living in the country for a certain period of time, asylees can apply for lawful permanent residency and, eventually, citizenship.

There are two types of asylum: Affirmative asylum is proactive and involves the potential refugee applying for status via the United States Citizenship and Immigration Services (USCIS). Defensive asylum refers to situations where an immigrant involved in removal proceedings argues they meet the criteria for asylum and therefore should be allowed to stay in the country.

Metering at the United States-Mexico Border

A practice called “metering” had already been used in recent years to throttle asylum seekers at the United States-Mexico border, but President Trump formalized the process in April 2018. Under metering, refugees at the U.S.-Mexico border are placed on a Customs and Border Protection (CBP) “wait list” but are required to wait in Mexico until an appointment is available.

Under normal circumstances where metering is not in use, asylum seekers are meant to be welcomed into a border point of entry facility where their eligibility can be promptly evaluated. Under metering, potential asylees are beholden to the often-arbitrary whims of CBP agents on when (or even if) their eligibility interviews are conducted, and they are forced to wait on the Mexican side of the border (with no accommodations) indefinitely. Officially, CBP agents are meant to work down the wait list as soon as capacity becomes available at port of entry, but there has thus far been very little accountability on whether that directive has actually been followed.

In July 2019, the Trump administration outright institutionalized metering as part of the Migrant Protection Protocols (MPP). Asylum seekers are now limited to only 4 port of entry offices, where they receive a court date for an expedited hearing. Asylees are not permitted to exercise all of the traditional asylum-related legal mechanisms at these hearings, which have generally functioned as formalities to justify sending asylum seekers back to Mexico. The Ninth Circuit decided against the legality of MPP, but the Supreme Court stayed the decision, allowing metering to continue for now.

Pass-Through Asylum Rules

The Department of Homeland Security (DHS) enacted another set of asylum restrictions in July 2019. The policy prohibits refugees from seeking asylum in the United States if they did not first seek asylum in the country they passed through to reach the U.S. border. This practice effectively targets immigrants traveling from Central America through Mexico and denies them the asylum hearings to which they are typically entitled.

Even if a refugee does manage to successfully seek asylum in the United States under this practice, they are now evaluated under stricter criteria than they would have been before the changes. The Ninth Circuit shot down this rule as well until the Supreme Court again ordered a stay in the decision, keeping the policy active until appeals are decided.

Asylum Cooperative Agreements

The DHS instituted “asylum cooperative agreements,” also called “safe third country” agreements, with Guatemala in November 2019 and Honduras in May 2020. The policy effectively exports refugees seeking asylum in the United States by instead sending them to Guatemala or Honduras to seek asylum in either of those countries. Once a refugee has been sent to the “safe third country” as part of this process, they are barred from pursuing asylum in the United States again.

Asylum cooperative agreements have been faced with substantial criticism, as the policy does not appear to take into account whether refugees would be sufficiently safe in the countries to which they are being sent. Its legality is still being fought in court.

Additional Asylum Problems as a Result of COVID-19

The Trump administration has exploited the ongoing pandemic to effectively freeze all asylum processes. Following a Centers for Disease Control and Prevention (CDC) edict barring immigration from areas impacted by COVID-19, the CBP have aggressively removed all immigrants at the U.S.-Mexico border, regardless of pending asylum status. Because immigration courts have in most circumstances shut down, almost no refugees are being processed through MPP or other asylum pipelines. Consequently, refugees effectively have no means of seeking asylum in the United States. It is unclear when that reality will change as COVID-19 continues to spread across the country.

Struggling with Asylum? We Can Help.

It can be easy to become disheartened in the face of these draconian and arbitrary regulations, even as immigration advocates continue to battle against these likely illegal policies in court. The new restrictions introduced over the course of President Trump’s time in the White House together represent a clear and continuing assault on the enshrined rights of asylum seekers. That is why it is more important than ever to retain the services of an experienced immigration attorney to advocate for you in your fight for asylum.

At The Alagiri Immigration Law Firm, our entire practice is dedicated to immigration law. Our lawyers are award-winning and boast track records of achieving favorable outcomes for our clients. If you are a refugee struggling to exercise your right to seek asylum in the face of the Trump administration’s recent restrictions, we want to help.

Get the fierce legal advocate you deserve as you seek asylum. Call (650) 562-6900 or contact us online to schedule an initial conversation.

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