Editors Note: On Nov. 9, President Donald Trump issued a presidential proclamation that banned the granting of asylum outside of official border crossings. The proclamation was written in response to a group of Central Americans, known as the migrant caravan, currently traveling through Mexico in the hopes of requesting asylum at the border. The American Immigration Lawyers Association issued a statement in response to the rule, writing: “The Trump administration is using a caravan of desperate people hundreds of miles away as an excuse to gut our nation’s laws and block asylum seekers from getting a fair shot at asylum. U.S. law guarantees a fair and meaningful chance to request asylum, even for those entering between ports.”
In a speech at the White House last week, President Donald Trump falsely claimed that the migrant caravan — comprising thousands of asylum seekers traveling from Central America north to the U.S.-Mexico border — had become an “invasion.” According to Trump, the families fleeing violence and drought were “tough men” looking to “storm the border.”
As the midterms neared, the president repeated his ramped-up rhetoric at campaign rallies across the country. With the elections over, his words may have further long-term consequences: Trump’s dramatic depiction of a border crisis is setting the stage for his administration to undermine the country’s existing asylum policies.
Attorney General Jeff Sessions — who became known for his anti-immigration policies — resigned this week, making the future of asylum-seekers even more unclear. As the dust settles this week, here are three of the biggest changes to asylum that we know are currently being considered by the White House. The elections may be over, but the fallout for migrants might just be kicking into gear.
Banning asylum requests along most of the U.S.-Mexico border
According to the United Nations 1951 Refugee Convention, a treaty that the U.S. signed in 1967, refugees have a legal right to seek asylum once they reach another country’s borders. While undocumented crossings at the U.S.-Mexico border are the lowest they’ve been since the 1970s, asylum claims are on the rise due to a variety of factors, including historic levels of violence in some Latin American countries, according to the Brookings Institute, a D.C.-based public policy think tank.
Trump recently said he’d ban all asylum claims made outside of official border crossings. Although this would put the U.S. in violation of the aforementioned treaty, immigration policy experts believe the administration is currently in the process of drafting a rule that would accomplish this change, said Sarah Pierce, an analyst with the Migration Policy institute. Vox first reported on the new policy after seeing a leaked draft of the regulation in June.
In addition to violating international law, the regulation would result in the deportation of people with a credible fear of persecution. It would also funnel more people to the United States’ official entry points, which are already overwhelmed, though even there, asylum seekers are being targeted. In October, the Southern Poverty Law Center filed a lawsuit alleging that Customs and Border Protection officials illegally turned back asylum seekers, in some cases at “pre-checkpoints” the agency had set up ahead of official crossings.
Detaining asylum seekers indefinitely and ending bond hearings
Currently, once asylum seekers pass a “credible fear” interview, they usually have the option to pay a bond to get out of detention, and live freely in the United States until their asylum cases are heard in court.
But after U.S. District Court of the District of Columbia Judge James Boasberg ruled that it was against the law to keep asylum seekers in detention indefinitely — a practice encouraged by the Trump administration — former Attorney General Jeff Sessions referred a case to himself that could have resulted in the mandatory detention of asylum seekers without bond for months, and in some cases, years. This was worrisome, because when the attorney general previously referred cases to himself, he usually ruled in a way that diminished the rights of asylum seekers, or the ability to claim asylum. In June, for example, a case Sessions referred to himself resulted in domestic abuse and gang violence being excluded as reasons for seeking asylum. It is unclear how the newly appointed acting Attorney General Matthew Whitaker will proceed.
Detaining asylum seekers, including unaccompanied children, indefinitely
In April, the Trump administration implemented a zero-tolerance policy for illegal border crossings. This resulted in the separation of thousands of children from their families and caused an uproar around the country. Now, the administration is considering two additional ways to deter families from crossing the border to claim asylum.
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One way is to override the Flores settlement, a court agreement that requires the government to use the least-restrictive forms of detention for children, and limits their stay to 20 days. A new regulation, a draft of which was released in September, would negate Flores and allow for the indefinite detention of children with families, as well as of unaccompanied minors, until their cases have been reviewed. The government also is considering issuing waivers that give adults a choice between staying detained as a family, or agreeing to being separated from their children, said Katie Shepherd, a lawyer with the American Immigration Council, an immigration law nonprofit.
Before Session’s departure, the president stated he would act as soon as this week to push new restrictions on asylum claims. If implemented, those new restrictions could have profound implications for how the country treats some of the world’s most vulnerable people, long after election season ends.
Jessica Kutz is an editorial fellow for High Country News. Email her at jessicak@hcn.org or submit a letter to the editor.
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