Jurisprudence

Trump Has Achieved His Goal of Abolishing Asylum

The pandemic has added one more insurmountable hurdle for asylum seekers.

A crowd of women and kids walk across a bridge.
Migrants are turned away from the border crossing in Ciudad Juárez.
Paul Ratje/Getty Images

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President Trump has taken advantage of the COVID-19 crisis to finally achieve his goal of foreclosing asylum for migrants fleeing violence in Central America and Mexico.

Two weeks ago, the Department of Homeland Security (purportedly at the direction of the Centers for Disease Control and Prevention) announced that it would bar entry to all migrants crossing the southern border in order to limit the spread of the coronavirus. Migrants arrested at the border without documents would  be quickly repatriated to their countries of origin. Simultaneously, the United States and Mexican officials mutually determined that non-essential travel between the two countries would be halted indefinitely. The Department of Health and Human Services, which is responsible for unaccompanied migrant children also announced that children were being quickly returned to their home countries on a “case by case basis,” rather than being admitted and considered for asylum in the United States. And in addition to closing the Mexican border to nonessential traffic, the United States has shut off access for anyone trying to claim asylum at the border. This includes more than 60,000 asylum seekers who have been forced to remain in Mexico under MPP (Migrant Protection Protocols) in dangerous conditions along the southern border. Now the people who were about to go before a judge to make their case – after waiting for months in crowded and unsanitary refugee camps – have been told that their hearings are postponed until at least May 1.

The Trump administration has been single-minded in its goal to eliminate asylum. In the final year of the Obama administration (fiscal year 2017), 120,815 asylum applications were filed in immigration courts by individuals facing deportation. In the first year of the Trump administration, the number fell to 110,469–an immediate signal that fewer migrants were able to seek asylum. By the end of 2018, immigration courts were denying asylum to 75 percent of applicants under guidance of the attorney general, compared to about 55 percent denials during the Obama era. Even before the coronavirus-related guidelines, the Trump administration’s efforts at the border and new guidelines on gang and domestic violence made it effectively impossible for asylum seekers to succeed in the United States.

Over the years, the administration has created a byzantine tangle of rules that worked in tandem to discourage migrants, put them in danger, and find reasons to turn them away.

In 2018, Customs and Border Protection implemented a metering, or waitlist, system which limits the number of people who can request asylum at a port of entry at a U.S.-Mexico border crossing each day. When asylum seekers present themselves at the border, they are told that they have to turn around and put their name on a waitlist, basically, back in Mexico and wait for their turn to request asylum. They wait weeks or sometimes months just for their opportunity to request asylum. Then, once they formally seek asylum, they are sent back to Mexico under the “Migrant Protection Protocol,” commonly referred to as the Remain in Mexico Policy. Under the policy, which was implemented in 2019, non-Mexican asylum seekers who presented themselves at the border are processed and returned to Mexico and told to wait while backlogged immigration courts work to schedule their hearings. Mexican shelters in dangerous border cities have been completely overrun with people who would have otherwise been released into the U.S. to await hearings. The surrounding neighborhoods of shelters are so dangerous that walking outside could result in kidnapping or death. Over a period of several months, the Human Rights First advocacy group tracked more than 1,000 reported assaults, rapes, kidnappings and other violent crimes committed against asylum seekers in Mexico—likely just the tip of the iceberg.*

The Trump administration then issued new regulations last summer that add a new bar to eligibility for asylum for a migrant who crosses the southern border without applying for asylum in one of the countries through which they passed en route to the United States. The person cannot apply for asylum in the United States without proof that he or she has applied for asylum in the third country first and has been denied. Since anyone from the Northern Triangle has likely traveled through Mexico, they must first apply for asylum in Mexico.

Meanwhile, the administration has drastically limited who is deserving of asylum in the first place. In June 2018, then-Attorney General Jeff Sessions issued an administrative precedent decision severely restricting the ability of women fleeing domestic violence to obtain asylum. The language in his decision was broad enough to make it hard for gang violence victims as well. Not to be outdone, in July 2019, the current Attorney General, William Barr, has ruled that typical family relationships are not strong enough to qualify for asylum even though persecutors may be upset at the entire family because of one member’s actions. Barr also has ruled that asylum seekers who have entered without inspection should be held without bail for the duration of their asylum proceedings, overturning a 15-year-old rule by the Board of Immigration Appeals.

As restrictive as these hurdles to asylum present, some applicants were able to get hearings and assert their claims. However, the COVID restrictions have halted everything. The COVID rules effectively shore up the web of asylum limitations by requiring those under the Remain in Mexico policy to report to the border and get a new hearing date. However, the migrants are told that even new date is subject to change, as they are forced to remain in perilous circumstances.

The inhumanity occurring at the border must end. We should learn from and acknowledge our past and current mistakes. Spending billions on harsh border enforcement that preys on human beings seeking refuge is not only cruel, but ineffective. Rather, we should focus on reducing the need for people to migrate while ensuring we have fair and humane procedures in place domestically, regionally, and internationally to handle those who flee and have claims for protection.

We should be redefining the concept of a refugee, which is based on outdated, overly restrictive criteria that has proven to be inadequate to deal with the gang and gender-based violence that we are increasingly seeing. At the same time, we need to re-think our commitment to fair legal process. For decades, the process has been entirely inadequate, further contributing to the pressures on our system. Immigrant rights organizations at the border reach out to volunteers on a daily basis to come counsel and advise the migrants on the asylum process and what to expect. The volunteers who respond are only able to speak with a small percentage of the 60,000 migrants waiting, much less provide full representation at deportation hearings. These efforts are likely helpful, although skeptics may wonder just how helpful, since the migrants themselves are left to risk their lives every step of the way. Relying on the goodwill of pro bono attorneys and under-funded legal services programs is a severely deficient approach that I have witnessed and participated in since the 1970s. In this unprecedented era, we need a bold new approach.

Correction, April 10, 2020: This piece originally misstated that Human Rights First had tracked 110 reports of violent crimes committed against asylum seekers in Mexico. The real number is more than 1,000.