Trump Admin Tightens Immigration Asylum Rules

by Kim Boateng Posted on November 9th, 2018

Washington, D.C., USA : New immigration rules give President Trump the power to deny asylum to virtually any migrant who crosses the southern border illegally. The Trump administration said Thursday it is moving ahead with a plan to clamp down on asylum claims, a controversial move designed to escalate President Trump’s broader efforts to crack down on illegal immigration.  Officials say the block is based on emergency powers President Trump issued to implement the 2017 travel ban.

The Justice Department and Department of Homeland Security published a joint rule (see below) prohibiting certain people caught crossing the U.S. southern border from Mexico between ports of entry from claiming asylum.

“Our asylum system is overwhelmed with too many meritless asylum claims from aliens who place a tremendous burden on our resources,” acting Attorney General Matthew Whitaker and Homeland Security Secretary Kirstjen Nielsen said in a joint statement.

The president is also expected to sign an accompanying directive specifying which migrants would be subject to the new asylum limits, senior administration officials said. The officials did not say to whom the ban would apply.

Trump plans to sign the measure Friday morning before leaving Washington for a trip to Paris.

Trump has long blamed the U.S. asylum system for attracting large groups of migrants from Central America. In recent weeks, he has fixated on a migrant caravan traveling toward the U.S., calling it an “invasion” of criminals and drug dealers.

The move is expected to draw legal challenges and widespread opposition from Democrats and immigrant rights groups.

The president initially revealed his plans to unilaterally change asylum rules during a speech last week from the White House designed to keep voters’ focus on immigration ahead of the midterm elections.

“It’s going to be talking about everything. It’ll be quite comprehensive,” Trump said.

Trump’s decision to make good on his pledge shows he has no plans to let up on his immigration crackdown, which has played a central role during his time in the White House and motivates his core supporters.

Under the new rules, people would be required to go to a legal port of entry to make a claim for asylum.

The Immigration and Nationality Act of 1965 (INA) says migrants can claim asylum regardless of how they crossed the border and some legal experts have said the changes could violate that law.

“Denying people the right to seek asylum is cruel, unjust, and also unlawful,” said Tom Jawetz, vice president of immigration policy at the liberal Center for American Progress.

But the administration argues that other provisions of the INA give Trump broad authority to “suspend the entry of all aliens or any class of aliens” if he deems their entry is “detrimental to the interests of the United States.”

The administration used the same legal reasoning to justify its travel ban, which was upheld by the Supreme Court.

It remains unclear how long the restrictions will remain in place, but officials say they are intended to streamline the asylum process while ensuring resources aren’t being tied up working on what the administration says is a growing number of fraudulent claims.

People who claim asylum at the border are currently interviewed by U.S. Citizenship and Immigration Services officials to determine whether they have a “credible fear” of returning to their home countries. If they do, they are generally released from custody pending a court hearing, a practice Trump has derided as “catch-and-release.”

The new rule states that officials must assess whether migrants are eligible to seek asylum under Trump’s forthcoming proclamation. The migrant would then have to meet a higher standard of “reasonable fear of persecution or torture” to avoid deportation and continue with the asylum process.

The administration says the number of migrants claiming “credible fear” when caught the border has jumped from 5,000 to 97,000 over the past decade, even though only 6,000 were eventually granted asylum last year.

Officials accuse immigrants of using the claims to avoid or delay deportation and removal proceedings.

“It is a massive, frankly historically unparalleled abuse of our immigration system,” said one senior administration official.

Immigrant rights groups push back against that characterization, saying the number of asylum-seekers at the border has jumped due to rampant poverty and violence in Central America, which often results in people being targeted by drug cartels.

Trump has recently made a series of announcements aimed at the caravan, which critics have dismissed as a political stunt intended to provoke voters’ fears over a group of people who do not pose a threat to the U.S.

The president said last week he wants to detain migrants in large “tent cities” at the border until they have a court hearing, rather than releasing them beforehand.

Thursday’s announcement follows the president’s decision to send 5,200 active-duty service members to the southern border to bolster the Border Patrol’s effort to stop the caravan. Trump has said he may send as many as 15,000 military service members to the border, though it remains unclear whether he plans to follow through.

Trump also said he could sign an executive order ending birthright citizenship for children born to non-legal residents, which many lawmakers and legal scholars say would be unconstitutional.

The president’s decision to change the asylum process is expected to attract scrutiny from Democrats, who will have increased leverage to push back against Trump’s immigration policies with control of the House in the next Congress.

Immigration is expected to be a prominent issue on Capitol Hill next year.

Trump is likely to redouble his request for funding to build a border wall, something Democrats vehemently oppose.

The Supreme Court could render a ruling on former President Obama’s Deferred Action for Childhood Arrivals program, which could prompt congressional action.

DOJ and DHS Issue New Asylum Rule

Applies President’s authority to suspend entry to asylum

Acting Attorney General Matthew Whitaker and Department of Homeland Security Secretary Kirstjen Nielsen today announced an Interim Final Rule declaring that those aliens who contravene a presidential suspension or limitation on entry into the United States through the southern border with Mexico issued under section 212(f) or 215(a)(1) of the Immigration and Nationality Act (INA) will be rendered ineligible for asylum.

The Acting Attorney General and the Secretary issued the following joint statement:

“Consistent with our immigration laws, the President has the broad authority to suspend or restrict the entry of aliens into the United States if he determines it to be in the national interest to do so. Today’s rule applies this important principle to aliens who violate such a suspension or restriction regarding the southern border imposed by the President by invoking an express authority provided by Congress to restrict eligibility for asylum. 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. 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.”

Section 212(f) of the Immigration and INA states that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Further, Section 215(a) of the INA states that it is “unlawful…for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

In Section 208(d)(5)(B) of the INA, Congress specified that the Attorney General “may provide by regulation for any other conditions or limitations on the consideration of an application for asylum.”

Today’s new rule applies to prospective presidential proclamations, and is not retroactive.

Asylum is a discretionary form of relief granted by the Executive Branch on a discretionary basis to those fleeing persecution on the basis of their race, religion, nationality, membership in a particular social group, or political opinion. The rule does not render such aliens ineligible for withholding of removal under the INA or protection from removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Interim Final Rule can be found here.

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Kim Boateng

Kim Boateng

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