“We’re not letting them in, but they’re trying to flood our country,” he told reporters.
The move, sure to be quickly challenged in court, could go against U.S. and international law that protects people who fear for their lives and safety in their native countries. But, frustrated with a slowly approaching migrant caravan, a record number of families apprehended at the southern border and a yearslong swell of asylum-seekers, the Trump administration is doing it anyway.
On Thursday, the Department of Justice and Department of Homeland Security published a new interim rule barring asylum for migrants suspended from the U.S. by the president.
Trump on Friday signed a proclamation suspending entry of migrants without authorization along the southern border.
The actions, taken together, will bar access to asylum for immigrants who request it after crossing the border illegally rather than at a port of entry ― regardless whether they have an otherwise meritorious claim. The change will take effect Saturday and will continue for 90 days. It does not apply to unaccompanied minors.
U.S. law states that immigrants physically present in the country may apply for asylum “whether or not at a designated port of arrival,” with limited exceptions. Immigrant rights groups have argued that barring asylum for people who crossed illegally would be a blatant overreach.
“U.S. law specifically allows individuals to apply for asylum whether or not they are at a port of entry,” Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said in a statement. “It is illegal to circumvent that by agency or presidential decree.”
However, Trump administration officials argued on a call with reporters that the asylum policy change is justified on similar grounds to the president’s travel bans, the final of which was allowed to go into effect by the Supreme Court. By law, the president can suspend the entry of a class of immigrants by proclamation if he finds their entry “would be detrimental to the interests of the United States.”
“Our asylum system is overwhelmed with too many meritless asylum claims from aliens who place a tremendous burden on our resources, preventing us from being able to expeditiously grant asylum to those who truly deserve it,” DHS Secretary Kirstjen Nielsen and acting Attorney General Matthew Whitaker said in a statement. “Today, we are using the authority granted to us by Congress to bar aliens who violate a Presidential suspension of entry or other restriction from asylum eligibility.”
Even if the policy change is blocked in lower courts, the Trump administration believes the Supreme Court will eventually rule in its favor thanks to Trump’s successful nomination of Justice Brett Kavanaugh, NBC News reported based on conversations with two officials.
Under the new policy, migrants denied asylum for crossing the border illegally could potentially avoid deportation by being granted “withholding of removal,” a status that does not include a path to citizenship and can be revoked, or could be given protections under the United Nations Convention Against Torture. They would be assessed using the “reasonable fear” standard, which is a higher bar to clear than the one for asylum. Administration officials said the policy would meet the United States’ international obligations since it would allow migrants to avoid removal through “withholding of removal” and the Convention Against Torture.
The Trump administration has already made it harder to seek asylum in the U.S. Then-Attorney General Jeff Sessions ― whom Trump ousted on Wednesday ― instructed immigration judges in June to “generally” deny asylum based on an individual experiencing gang or domestic violence. That, in turn, led to an uptick in asylum officers rejecting applications, according to immigration attorneys near the border.
Asylum approval rates in immigration court in the 2018 fiscal year were at their lowest in two decades, BuzzFeed reported last week.
Meanwhile, immigrant rights advocates say the administration is increasingly using what it calls “metering” to restrict the number of people who can seek asylum at ports of entry each day ― now the only place where migrants can request the reprieve. Already, many people must wait weeks or months to even get an appointment, leaving them in Mexico where shelters are struggling to house them and they can be targeted by gangs. This leads to some asylum-seekers choosing to cross illegally and request help afterward instead.
DHS officials said Friday the aim of the new policy is to “funnel” asylum-seekers to ports of entry. They gave no details about preparations to handle a potential influx. Officers at ports of entry also have other obligations, such as stopping entry of narcotics, officials said.
The administration’s preference is that asylum-seekers not come to the U.S. at all ― and stay in Mexico, one administration official said.
Seeking asylum is not a crime, and people are entitled to seek asylum regardless of where they cross the border.
Eleanor Acer of Human Rights First
Eleanor Acer of the nonprofit Human Rights First said the administration “has systematically undermined the asylum and refugee protection systems.”
“It has illegally turned away refugees at official border points, forcing desperate individuals to make the dangerous crossing between points,” she said in a statement. “Seeking asylum is not a crime, and people are entitled to seek asylum regardless of where they cross the border.”
The Trump administration has balked at its inability to quickly deport or indefinitely detain asylum-seekers, families and children, based on space constraints and court-based limitations on how long kids can be locked up.
DHS released a statement on Thursday accusing migrants of being coached by smugglers and advocates to use the “magic words” to be considered for asylum. Nearly 90 percent of migrants from Central America passed the first step of screening for asylum, but only 9 percent were ultimately granted the protections, according to DHS.
Trump has taken other dramatic steps in recent weeks that he claims are justified by migrant caravans still hundreds of miles from the border. Trump sent more than 5,000 troops to the border to assist Customs and Border Protection, although the military is not authorized to make immigration-related arrests. Before the election, the military decision was called Operation Faithful Patriot; the Pentagon dropped the name without explanation the day after the midterms. (Defense Secretary Jim Mattis insisted the deployment was not a stunt.)
There could be other actions against undocumented immigrants and their families to come, even though Democratic gains in the House will make passing the president’s agenda through Congress more difficult beginning next year. Trump said before the midterm elections that he would sign an executive order to end birthright citizenship. Under the 14th Amendment, babies born in the U.S. are citizens regardless of the immigration status of their parents, but Trump wants to take that away ― another action ripe for a legal challenge.
“We do not expect any one action to solve all of the myriad, legion of flaws in our nation’s current immigration system,” a senior administration official said. “We are looking at a number of possibilities.”
This article has been updated to include Trump’s proclamation, and additional details about the new policy and reactions.