By David Secor.
In their first week back in office, the Trump Administration broadly declared that “President Trump has further restricted access to the provisions of the immigration laws that would enable any illegal alien involved in an invasion across the southern border of the United States to remain in the United States, such as asylum.” What does this actually mean?
Trump Administration’s Initial Actions on Asylum
So far, it appears that the Trump Administration is trying to completely restrict access to anyone trying to enter the United States via the U.S.-Mexico border if they cannot show status in the United States, including barring asylum seekers from presenting their claims at U.S. Ports of Entry.
Suspension of CBP One App
Shortly after taking office on January 20, the administration suspended CBP One, a mobile app that the Biden Administration had developed to coordinate and schedule appointments for asylum seekers. Those who had appointments scheduled for January 20 saw their appointments cancelled without notice or explanation. The Trump Administration’s bar for asylum seekers will not only leave many vulnerable people stranded in Mexico without protection or any recourse to seek safety, but it is also likely going to be challenged in court as illegal.
The Right to Seek Asylum: A Fundamental Protection
The right to seek asylum protects anyone fleeing persecution in their home country on account of their race, religion, nationality, membership in a particular social group or political opinion, and provides them with a meaningful opportunity to seek protection and safety. After millions of people had become refugees and asylum seekers at the end of the Second World War, the newly-formed United Nations adopted those definitions with the 1951 Refugee Convention, which it later broadened with its 1967 Protocol. Asylum has been a well-established part of U.S. law since Congress passed the Refugee Act of 1980, which provided a pathway for anyone fleeing persecution to request asylum in the United States and seek legal protection.
Legal Basis for Asylum in the U.S.
The first sentence of that provision states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including a [person] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum in accordance with this section.” See INA § 208(a)(1). This section means that anyone who is physically in the United States may request asylum – regardless of how they entered, where they entered, or their immigration status at their entry. Over the past several years, the federal courts have struck down bans from both the Trump and Biden administrations because those bans violated the plain language of the law. It will be important to watch whether the courts strike down this latest attempt too.
Expedited Removal and Prosecutorial Discretion Changes
Trump’s other actions in this initial executive order could also have several other effects for asylum seekers. By expanding the use of expedited removal, the administration will likely seek to deport more people before they have a meaningful opportunity to present their claims for asylum, and deny them an opportunity for any judicial review. Additionally, the administration’s rescission of the Biden Administration’s prosecutorial discretion guidelines for ICE may result in ICE taking harder stances against grants of relief for individuals before the Immigration Courts, including grants of asylum.
Backlog and Challenges in the Asylum Process
Currently, there are well over a million people seeking asylum affirmatively before the U.S. Asylum Offices, in addition to many seeking asylum before the U.S. Immigration Courts. With such an extensive backlog that often requires suing the federal government to even get an interview, it remains to be seen what, if any, kinds of changes the administration may make to that process. We may expect to see restrictive decisions coming again from the Attorney General’s Office that try to make the legal requirements for asylum more difficult to meet, which was a strategy the Trump Administration used during their previous time in office.
Legal and Humanitarian Implications
Even so, the right to seek asylum remains part of U.S. law and part of international law. Those fleeing persecution and seeking their legal rights to protection and safety deserve meaningful opportunities to present their claims and should be afforded real due process.
Support for Asylum Seekers
If you have any questions about asylum or about what these changes may mean for you, our office would be happy to assist.