Trump Asylum Policies

News Brief: New Trump Asylum Policies at US-Mexico Border

November 30, 2018

As families across America celebrated Thanksgiving last week, the Trump administration continued to work to deny rights to asylum seekers at the US-Mexico border. According to The Washington Post, a potential new deal may force migrants from South and Central America to wait in Mexico while their asylum cases process. Normally, when a migrant reaches a US point-of-entry and claims asylum, they have two options. They would either enter detention or be released while their case is pending.

“Remain in Mexico”

The plan, known as “Remain in Mexico,” focuses on the problem that the president calls “catch and release.” This term refers to typical US asylum processes, in which US authorities bring a potential asylee into custody and release them while their case pends. The Post notes that this allows refugees and other vulnerable persons to await their decisions on US soil, which is a safer haven than Mexico.

In a tweet on November 24, Trump wrote “Migrants at the Southern Border will not be allowed into the United States until their claims are individually approved in court.” He added that this action aims to prevent the “release” of migrants into US territory, a common action during asylum proceedings. The administration believes strongly that released asylum seekers don’t return for court dates. Again, Trump calls this standard process “catch and release.”

Yet, this notion ignores several important points. First, data support the argument that the majority of migrants, including asylum seekers, show up for their court dates. In actuality, asylum seekers’ attendance is likely even higher than migrants as a whole. And when asylum seekers don’t appear, it is often the fault of our intricate legal system, as highlighted by a recent report by the Asylum Seeker Advocacy Project. While there are certainly immigrants who intentionally skip court dates, it’s dangerous to deny rights based on this notion when the data reflect otherwise.

Responses to the Post’s Article

In response to the Post’s article, Mexican leaders stated that they had reached no official deal. Though it was clear that Mexico would not remain amenable to the plan for an extended period of time. In an interview with the Post, one official stated it was a “short-term solution,” continuing that such a policy would not be beneficial to Mexico in the long term.

In an interview with NPR, the American Civil Liberties Union (ACLU) stated that the new deal “cannot be legal unless they can assure all the asylum seekers who will be stranded in Mexico… will be safe.” Due to several factors, including criminal gangs, this is unlikely to be the case. Thus, the ACLU believes that no iteration of “Remain in Mexico” will be legal. Either way, should the Trump administration reach any deal with Mexico limiting asylum rights, it surely will face immediate challenges in US courts.

How did we get here?

The “Remain in Mexico” policy did not develop spontaneously. This escalation of asylum enforcement began with the so-called “migrant caravan” that received national attention in October 2018. As midterm elections approached, the president used xenophobic and racist rhetoric to plant fear in American voters. Nanthaveth & Associates reported on the migrant caravan in October – you can read more here and here.

In early November, Trump announced that he planned to change federal asylum rules. His goal – disallow any person entering the country illegally from applying for asylum. In a formal proclamation, the president stated that only those crossing the US-Mexico border via an official “port of entry” could request asylum.

Yet, wait times for those entering at border patrol stations can be punitive. According to The New York Times, some migrants wait for several days to even gain access to the US. For asylum seekers who fear for their lives, waiting in the same place for such a long time may not be a feasible option.

There are two types of asylum proceedings – affirmative and defensive. Potential asylees who enter the country illegally but claim asylum often face the latter. Applicants participate in “credible fear” interviews with government representatives, normally USCIS employees, before their case moves forward. If the governments believes a person or family has credible fear, their asylum proceedings continue to a judge via immigration court. At that point, if asylum is denied, deportation is imminent.

Legal Challenges to Trump’s Asylum Proclamation

Trump’s new asylum regulations faced immediate legal challenges from groups such as the ACLU. Under federal law, it does not matter how a person enters the US. Asylum seekers may request asylum whether or not they entered officially via a port of entry. While the Immigration and Nationality Act (INA) often defers to presidential discretion, it’s unclear what the ultimate decision will be from US courts.

On November 20, Judge Jon S. Tigar of San Francisco issued a temporary block of Trump’s new asylum rules. This means that, for at least 30 days, the president cannot enact the planned policy changes announced in his proclamation. The court case will proceed on December 19. Since the injunction, the DOJ has asked to enforce the new asylum rules, appealing the decision. All asylum seekers can request consideration no matter their method of entry. While this glimmer of hope may be reassuring, it is a temporary block and may be reversed.

Contact an Austin Immigration Attorney

At this point, the future of asylum as we know it seems insecure. The Trump administration’s challenges may prove successful in the long run. If such policies are even partially successful in the US judicial system, the asylum process will change significantly. If you have any questions or concerns about the current US asylum process, you should contact an experienced immigration lawyer. The Austin-based attorneys at Nanthaveth & Associates monitor legal news and policy changes to ensure your rights are protected. You can schedule a free initial consultation today to discuss any immigration concern.