Can Donald Trump Stop Asylum Protections? Rights Groups Vow to Sue

After the Trump administration announced sweeping restrictions on Monday that will block a significant share of asylum claims at the U.S. border, rights groups vowed to take swift action.

The Department of Homeland Security announced its proposed joint rule with the Department of Justice in a statement Monday, claiming that it would "enhance the integrity of the asylum process."

Under the new regulations, which are expected to be published in the Federal Register on Tuesday, the U.S. can deny asylum to anyone who has failed to apply for protections in another country that they have passed through on their way to the American border.

While the rule does make an exception for asylum seekers who either demonstrate that they satisfy the definition of a "victim of a severe form of trafficking in persons" or who have made their way to the U.S. through countries that did not participate in conventions enshrining the protection of asylum seekers, it will effectively see the majority of Central American asylum seekers, including unaccompanied children, turned away from the U.S. border.

"This new rule will effectively slam the door on asylum seekers at the U.S.-Mexico border, including unaccompanied children traveling alone, and marks yet another shameful attempt by the Trump Administration to rewrite our immigration laws and turn its back on refugees," the Center for Gender & Refugee Studies said in a statement responding to the proposed rule.

The organization added that the new mandate would effectively "relocate the humanitarian crisis at the U.S.-Mexico border further south, shifting responsibility to countries that are less well-resourced than the United States and ill-equipped to address the urgent needs of asylum seekers."

In a statement, Attorney General William Barr asserted that the rule "is a lawful exercise of authority provided by Congress to restrict eligibility for asylum" in response to the country being "completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border. "

The graphic below, provided by Statista, illustrates the number of individuals granted asylum in the U.S.

Asylum U.S. statista
Number of individuals granted asylum in the U.S. Statista

However, rights groups have argued that the new regulations are anything but lawful, with the American Civil Liberties Union vowing to take legal action.

"The Trump administration is trying to unilaterally reverse our country's legal and moral commitment to protect those fleeing danger," said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project in a statement. "This new rule is patently unlawful and we will sue swiftly."

Melissa Crow, senior supervising attorney of the Immigrant Justice Project at the Southern Poverty Law Center, also condemned the proposed rule, asserting that it would "essentially prevent anyone from besieged Central American countries from obtaining asylum in the United States and instead would trap them in anything but 'safe' conditions."

"It would have dire consequences for countless migrants fleeing danger and persecution," Crow warned.

In an analysis of the proposed rule, Kristie De Peña, who serves as director of immigration and senior counsel for the Washington, D.C.-based Niskanen Center, said that the rule would effectively "preclude everyone—other than a Canadian or Mexican national—arriving at the southern border from applying for asylum if they first transited through another country where they failed to apply for and receive a final determination on humanitarian relief there."

"Without question, there will be legal challenges to the regulation," she said in a post published on the Niskanen Center's website.

While De Peña noted that "decades of judicial precedent supports the ability of the Attorney General and DHS to determine—and change—requirements of eligibility for receiving asylum," she said it "is not clear that the case law authorizes regulation of the ability to apply for asylum, which has benefits (like other forms of relief) in and of itself."

"For instance, in addition to the general ban on third-country asylum seekers, the rule requires a higher burden on proof for withholding of removal and Convention Against Torture (CAT) protections that were previously bundled with asylum claim review and were subject to the same burden of proof. Undoubtedly, this authority will be emphatically challenged," she said.

Ultimately, De Peña said it is "important to keep in mind the spirit and purpose of asylum."

"Who may apply for asylum status has always been governed broadly by international law, and domestically, by bilateral safe third-country agreements and safe relocation considerations," she said. "That more people need protection now should not spur us to figure out how to avoid responsibility, but to positively affect those conditions and assist those impacted by them. Responsibility to do so lies with Congress; it should not fall to the courts to review administrative changes."

A boy looks through the U.S.-Mexico border fence in Playas de Tijuana, Baja California state, on June 29, 2019, Mexico. The Trump administration has announced a rule that will block a significant share of asylum applications. GUILLERMO ARIAS/Getty

This article was updated to include an infographic.