Changes to Asylum in the United States
This summary helps showcase the changes to the myriad of rules and policies targeting the U.S. asylum system; and violations U.S. and international laws in the process. These policies include “zero tolerance,” which caused family separations at the border, the Migrant Protection Protocols (MPP), which strands people in Mexico who are seeking asylum, metering at ports of entry, restricting credible fear standards, forcing dangerous neighboring countries to sign “safe third-country” agreements, banning people from applying for asylum if they cross outside a port of entry or if they pass through a third country, and expediting the deportation of asylum seekers.
What is Asylum?
Asylum is a protection granted to individuals already in the United States or at the border who meet the international law definition of a “refugee," or someone who is unable to return to their home country, and cannot obtain protection in that country. This can be due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The U.S. signed onto an international agreement, the 1968 Protocol, and through U.S. immigration law, the United States has a legal obligation to provide protection to those who qualify as refugees. As a result, the Refugee Act established two paths to obtain refugee status, either (1) from abroad as a resettled refugee or (2) in the United States as an asylum seeker.
New Policies Designed to End Humanitarian Protections
The U.S. Federal Government Continues to Forcibly Separate Families at the Border, Even After Court Injunction. In April 2018, then-Attorney General Jeff Sessions announced that “zero tolerance” would be the new policy of the Justice Department when it came to prosecuting cases of individuals crossing the border unauthorized. This led to over 2,800 family separations. In July 2019, the ACLU said in a court filing the federal government continues to “systematically” separate children from their parents, including more than 900 children who are in U.S. custody away from their parents since last summer’s government injunction. One-fifth of the newly separated children are younger than 5 years old, according to the figures.
Institution of Migrant Protections Protocols (MPP), or Remain in Mexico Policy, Strands Thousands of Individuals Seeking Asylum in the U.S. in Mexico. In January 2019, DHS implemented the Migrant Protections Protocols (MPP) policy, forcing certain individuals seeking asylum from Guatemala, Honduras and El Salvador to wait for court dates in Mexico. When an individual presents themselves to CBP agents they are given a date in US immigration court 45 days in the future, and turned over to Mexican authorities. The cruel policy was denounced by policymakers, advocates, and federal asylum officers in charge of executing the policy, have called it “fundamentally contrary to the moral fabric of our nation.” As of August 2019, the United States has made 50,000 individuals seeking asylum wait in dangerous Mexican border towns leaving many vulnerable to violence such as kidnapping, rape, and murder.
Dara Lind for Vox: Asylum Seekers “have to Wait in Underfunded Shelters in Tijuana or Overcrowded Ones in Ciudad Juarez — Cities That Aren’t Necessarily Safe for Anyone Right Now…” “It’s a fundamental shift in the policy of asylum — which is generally, in US law, a legal protection you claim while on American soil. Instead, many migrants will have to wait in underfunded shelters in Tijuana or overcrowded ones in Ciudad Juarez — cities that aren’t necessarily safe for anyone right now, and where Central American migrants can be particularly vulnerable.” [VOX, 3/22/19]
Admin Metering Policy Creates Thousands Long Waitlist Before One Can Even Apply for Asylum at a Port of Entry. The Administration instituted a policy known as metering, which allows only a certain amount of individuals to enter a port of entry per day to petition for asylum in the U.S. Metering leaves vulnerable individuals in unsafe conditions, forcing them to wait for, in some instances, months before they can set foot on U.S. soil. Although this policy was used sparingly under the Obama administration, it is now common practice under President Trump. Each day CBP alerts Mexican officials on how many people (if any at all) they will take. According to the Associated Press, though there is no way to know how many people will be called per day, 13,000 people were on waiting lists to petition for asylum across eight cities along the U.S.-Mexico border in May 2019.
Administration Drastically Restricts Domestic Violence Survivors and Families From Qualifying for Asylum. In June 2018, then-Attorney General Jeff Sessions personally intervened on an immigration case and set a precedent which barred domestic violence and gang violence survivors from qualifying for asylum, eroding decades of asylum case law. A federal judge based in Washington, D.C. blocked key parts of Session’s decision six months later. In July 2019, Attorney General William Barr acted in a similar fashion and in a precedent-setting court opinion, he stated that being part of a nuclear family targeted for persecution, did not qualify as a “particular social group” in order to be eligible for asylum in the U.S.
DHS Implements Asylum Ban for All Who Crossed Between a Port of Entry and Those Who Cross Through Another Country Before Arriving At the U.S. Border. In November of 2018, the Administration announced a policy which barred people from being eligible for asylum if they entered the U.S. between a port entry. This asylum ban was thrown out by a federal judge in August 2019. On July 15, DHS published the Third-Country Asylum Rule, which banned individuals from applying for asylum if they passed through another country en route to the U.S. In short, the policy effectively bans anyone who isn’t from Mexico or Canada from qualifying for asylum in the United States unless they arrive by plane. According to the American Immigration Council, it forces many people fleeing persecution to seek protection in countries such as Mexico or in Central America, which have limited capacity and protections for asylum seekers, and are in many instances dangerously unsafe themselves. On July 24, 2019, a federal judge in San Francisco temporarily blocked this ban. The ACLU, National Immigrant Justice Center, Center for Gender & Refugee Studies, and Human Rights First filed a lawsuit concerning these agreements against the federal government on January 16, 2020.
Trump Admin Threatens Countries With Tariffs Until They Reach “Safe Third Country” Agreements. On July 22, 2019, the Trump Administration announced that it reached a “safe third country” agreement with Guatemala which makes individuals who passed through the country on their way to the U.S. ineligible for asylum in the United States and requires people fleeing persecution from all over the world, to instead apply for asylum protections in Guatemala. The US has brokered similar agreements with Honduras and El Salvador. A few days before the announcement, President Trump threatened tariffs on Guatemala if it didn’t accept the agreement. In June 2019, President Trump also threatened Mexico with tariffs in order to pressure them to accept a safe third country agreement. Mexico agreed with the United States to begin talks, and took its own measures to reduce apprehensions, however has not agreed to a safe third country agreement.
Administration Announces Significant Expansion to Expedited Removal, A Process Allowing Quick Deportations Without Hearings. On July 23, 2019, DHS announced a significant expansion of expedited removal, making undocumented immigrants who could not prove that they have lived in the U.S. for more than two years, subject to a quick deportation without an immigration hearing. Previously this policy applied primarily to individuals who entered on land and were apprehended within 100 miles of the U.S. border. The expansion now makes certain individuals vulnerable to deportation without due process all across the country.
Supreme Court decision in effect allows the Administration to Enforce New Rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country. This will in all likelihood prevent most asylum cases from ever being presented. This ruling reversed long-standing asylum policies that allowed people to seek asylum no matter how they got to the United States - only immigrants who have been denied asylum in another country. Under this rule, Hondurans and Salvadorans must seek and be denied asylum in Guatemala or Mexico before they can apply in the United States and Guatemalans must seek and be denied asylum in Mexico.