The United States had a long-standing tradition of accepting immigrants fleeing political oppression, religious persecution, or violence through what’s known as the asylum process. Under existing policy, migrants must either present themselves to U.S. Customs and Border Protection (CBP) while crossing the border or request asylum if they are arrested. U.S. Citizenship and Immigration Services then holds a hearing to determine if they meet the criteria for asylum.
As part of an attempt to limit immigration through the southern border, the Trump Administration in July issued a rule saying migrants cannot seek asylum in the United States if they have crossed through a country other than their own, essentially barring any asylum seekers except those from Mexico.
In September, the Supreme Court allowed the rule to go forward, reversing a temporary injunction placed by two lower courts. This means that the policy applies to migrants who entered the United States on or after July 16, when the rule was issued, although a challenge to its legality is ongoing.
The Trump Administration has said the government needs to reduce the flow of migrants coming through the southern border, which rose steeply in early 2019. More than 100,000 families and unaccompanied minors entered the country in March alone, although numbers began to drop later in the year after an agreement with Mexico that included a policy of sending asylum seekers back to Mexico while they waited for a court hearing.
In September, the White House said the United States will only accept 18,000 refugees in the next 12 months, less than half the number from the previous year and down from 110,000 allowed by the Obama Administration in 2016. The policy also would allow local governments to turn refugees away if they do not have the resources to support them.
Solicitor General Noel Francisco said in a brief that the new asylum policy was necessary to ease “a crushing burden” on the system and that it would prioritize those who really need the help. “The United States,” Francisco wrote, “has experienced an unprecedented surge in the number of aliens who enter the country unlawfully across the southern border and, if apprehended, claim asylum and remain in the country while their claims are adjudicated, with little prospect of obtaining that discretionary relief.”
Under the rule, migrants would be allowed to apply if they had been denied asylum elsewhere or if they were victims of “severe” human trafficking. People passing through the northern border already are required to claim asylum in Canada before doing so in the United States through a “Safe Third Country Agreement” struck in 2002.
In 2019, the United States signed similar agreements with Guatemala, El Salvador, and Honduras that would require migrants to seek asylum in those countries before reaching the southern border, although those programs have not yet been implemented.
Immigration rights groups say the Trump asylum rule violates the country’s commitment to protect human rights under the 1951 United Nations Refugee Convention. The asylum system was established in the Refugee Act of 1980 and has made the United States a world leader for housing refugees.
The American Civil Liberties Union (ACLU) filed an immediate challenge to the rule, saying it would cause chaos and endanger refugees by returning them to countries where their lives are at risk. Guatemala, Honduras, and El Salvador have seen some of the highest rates of violence, and refugees from those countries must pass through Mexico to reach the United States.
“This rule will result in those fleeing fear and persecution to be turned away at our doorstep and will only exacerbate the humanitarian crisis in the region,” House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Subcommittee on Immigration and Citizenship Chair Zoe Lofgren (D-CA) said in a joint statement.
Critics also have challenged the rule’s lack of a “categorical exemption” for unaccompanied children, meaning that children would have to appear in a courtroom rather than make their case to an asylum officer.
The future of the rule will be decided in court. The ACLU, the Southern Poverty Law Center, and the Center for Constitutional Rights filed a lawsuit against it, and a San Francisco judge put a hold on the rule soon after it was issued.
An appeals court upheld that decision, but the Supreme Court overturned it. The challenge is still active, however, and is likely to make its way back to the Supreme Court.
In a dissenting opinion, Supreme Court Justice Sonia Sotomayor wrote that the rule “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere — without affording the public a chance to weigh in.”
For more, see the September 2018 Congressional Digest issue on “Immigration Under Trump,” the November 2018 article “Birthright Citizenship,” and the June 2018 article “Migrant Children.”
