The Trump administration on Monday published sweeping rules making it substantially more difficult to get asylum, moving a step closer to what critics are calling a death blow to the system of seeking humanitarian protection in the United States.
The administration has already remade much of the asylum system, claiming it is rife with abuse and overwhelmed with undeserving claims. Its policies include making asylum-seekers wait in Mexico while their claims are heard in U.S. court and denying asylum to anyone on the Mexican border who passes through another country on the way to the U.S. without first seeking protection there.
The latest salvo — previewed last week in 161 pages of legalese — directs immigration judges to be more selective about granting claims and allows them to deny some without a hearing. Its dense language describes rules the administration has already tried and others that are new.
Its publication Monday in the Federal Register triggered a 30-day period for comment before the rules can take effect. The administration must address each comment, making precise timing unpredictable. Legal challenges are likely.
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Ur Jaddou, director of advocacy group DHS Watch and former chief counsel of U.S. Citizenship and Immigration Services, said more than 30 other measures the administration has taken against asylum were like "a death of a thousand cuts, but this regulation is a guillotine.”
“This is like the Frankenstein of all anti-asylum regulations,” said Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School. “It puts everything together in one big package.”
Immigration lawyers were poring over details days after they were first released but here are some provisions they highlight:
—Immigration judges, who work for the Justice Department and take direction from the attorney general, could reject “legally deficient” claims without a hearing. Asylum-seekers would have at least 10 days to respond.
A hearing allows asylum-seekers to understand the process, said Greg Chen, director of government relations for the American Immigration Lawyers Association. Those who don't have attorneys, don't speak English and don't know immigration law would be especially disadvantaged.
—There are several new factors that weigh against asylum, including failure to pay taxes. Criminal records will still count against the asylum-seeker even if convictions are expunged, modified or reversed.
The asylum ban on anyone who travels through another country on the way to the U.S. carries additional heft. Having spent more than two weeks in a country or traveled through more than one country weigh against getting asylum.
Asylum is to protect people from persecution on grounds of race, religion, nationality, political opinion or membership in a particular social group. Social group is the hardest to define and the administration has tried to raise the bar for victims of gang and domestic violence.
The proposed regulations say gang members shouldn't be considered part of a social group if they were ever recruited or targeted by gangs or because they live in country with generalized violence.
The regulations redefine “persecution,” saying the asylum-seeker must face an “exigent threat.” Yale-Loehr of Cornell says a prisoner living with lights on 24 hours a day, loud music, lack of water and not enough room to lie down wouldn't meet that threshold.
The definition of “political opinion” is also more narrowly construed.
While seemingly arcane and complicated, the consequences may be profound, especially for Central Americans fleeing endemic violence who helped make the U.S. the world's top destination for asylum-seekers.
Andrew Arthur, a retired immigration judge, said the rules are a step toward fixing a system that he calls a “national disgrace." Arthur, who is affiliated with the Center for Immigration Studies, a group that seeks to limit immigration, said it “brings sensible changes to some of the least logical provisions in the current regulations.”
Sarah Pierce, an analyst at the Migration Policy Institute, said the administration may have felt pressured to get something done before January, when Trump would leave office if he loses his bid for a second term. Some measures have been in the works for years.
“This is not the longest regulation we’ve seen from the Trump administration but it is definitely the most dense,” Pierce said. “It appears they lumped them all together, maybe to overwhelm advocates."
