Trump’s New Rule Strikes at the Heart of U.S. Asylum

By UUSC Staff on November 9, 2018

A new interim final rule issued yesterday proposes to undo one of the key tenets of U.S. asylum law. This sweeping policy change, accomplished with the unilateral stroke of the executive’s pen, violates fundamental human rights commitments under domestic and international law, and is in effect a ban on the right to seek asylum.

In text published in the Federal Register, the Trump administration provided the regulatory framework for a presidential proclamation – issued Friday – that outlines specific restrictions on the right to apply for asylum. The regulation allows the executive to declare whole populations ineligible for asylum, and signals that the first targets of this power will be people who request asylum outside official ports of entry.

This move directly contravenes current U.S. asylum law, which explicitly allows anyone to apply for asylum within the United States “whether or not at a designated port of arrival.” While the proposed rule acknowledges this statute, it goes on to assert broad powers for the President and the Attorney General, redefining their ability to restrict the right to seek asylum in the United States.

This rule is one of the most extreme cases of executive abuse and overreach attempted by the Trump administration, likely emboldened by their success in forcing an unjust and immoral “Muslim Ban” through the courts. The authority for the Muslim Ban was claimed on similar grounds.

The move directly follows the playbook of contemporary populist authoritarian regimes. In a recent report, UUSC and our partners in Eastern Europe traced parallels between the Trump administration and Hungarian Prime Minister Viktor Orbán’s efforts to roll back human rights and limit legal immigration. One of Orbán’s early moves was to restrict asylum to designated ports of entry and to slow the processing of asylum-seekers to a trickle, leaving thousands stranded and at risk.

The proposed regulation falsely claims that it does not violate U.S. human rights obligations because it still allows individuals to apply for a different status: “withholding of removal.” However, this status is not only less protective, but also requires a higher burden of proof, making it difficult to meet, particularly  for people who may have lost access to key documentation as they fled their homes in search of safety. Most disturbingly, the rule states that a grant of “withholding of removal” would still not prevent the government from deporting someone to a third country that it deems to be a “safe” alternative.

Trump’s “asylum ban” marks a profoundly dangerous escalation in his continued efforts to wear down and erase human rights protections for immigrants and asylum-seekers. The lives and safety of millions of individuals depend on the United States maintaining a robust asylum system that meets our obligations under international law and allows for people to seek refuge from violence and instability. Attacking asylum is beyond the pale of conventional politics or partisan debate and is further evidence that the president’s immigration agenda is steeped in white nationalism. By striking at the heart of this system, Trump endangers human life and our values as a nation.