Daniel Garzon Herazo/NurPhoto via AP
An immigrant in Colombia earlier this month
In the middle of June—when coronavirus cases were rising and it was clear that the United States was deporting COVID-positive asylum seekers—the Trump administration released a proposed rule that, if implemented, would devastate the entire asylum system.
“This is a grab bag of horribles,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. “The rule would fundamentally reshape the asylum system.”
Unlike some of the other immigration policy changes the Trump administration has proposed, the 161-page rule was released in accord with the Administrative Procedure Act, which mandates public notice and a public comment period. According to the APA, the government must respond to every unique public comment, so asylum advocates seeking to delay the implementation of this rule have been mobilizing organizers, experts, and the general public to submit as many unique public comments as possible to delay the rule. The period for public comments expires on July 15 at 11:59 p.m. ET.
The rule has already received more than 40,000 comments—a significant number, but not nearly as many as the more than 260,000 public comments submitted for the infamous “public charge” rule that advocates say would have barred poor immigrants by requiring them to demonstrate a sufficient level of economic security.
“In the wake of COVID, the Trump administration took the chance to shut down asylum,” said Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA. In a July 1 interview, she told the Prospect that despite a judge’s opinion that day striking down the administration’s third-country transit ban, the administration had a Plan B in its proposed rule overhauling asylum. “It’s the same issue, slightly differently addressed,” she said of the proposed rule.
The 14-day transit ban included in this latest proposed rule says that if you spent more than two weeks in a country with an eligible asylum system, you’d be ineligible for asylum in the U.S. And if you traveled through more than one country, you’d also be banned from asylum—a rule that particularly hurts low-income asylum seekers who travel overland and asylum seekers from, for example, West Africa, who can’t fly nonstop into the U.S. It also redefines what it means to be “firmly resettled in a third country” so that even if you don’t have legal status in one country, but you could have received asylum in that country, you might be ineligible for asylum in the U.S.
Reichlin-Melnick explains that this latest iteration of a transit ban differs from prior versions. The third-country transit ban, which has been struck down in two separate courts, applies to those seeking asylum in U.S. who have passed through a third country where they could have applied for asylum but didn’t. That ban would have deported asylum seekers back to their country of origin. But the “safe third country” deals negotiated with Honduras, El Salvador, and Guatemala mean that asylum seekers from Mexico could be deported to Honduras to seek asylum—a country they may have never set foot in.
The third-country ban and the new transit ban “may be motivated by the same idea,” Reichlin-Melnick says, “but the transit ban applies to seeking asylum in the U.S., and safe third country deals are about the U.S. washing their hands of asylum claims and sending [asylum seekers] to a country that is not their own.” Given that the third-country transit ban has already been struck down, the new rule’s transit stipulations are also likely to be challenged in court, given their similarities to the earlier ban.
“The transit ban and third-country agreements are patently unlawful; the proposed regulations are simply another unlawful attempt to ban asylum by a different means,” wrote Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project.
In addition to applying another kind of transit ban, the administration’s new proposed rule undoes the asylum system in a number of additional ways. One is by redefining political speech. Under the new rule, only political speech relating to the government makes someone eligible for asylum. In other words, someone who advocates for LGBTQ rights, women’s education, or the rights of Jews, but did not advocate for a “change in government” would not be eligible for asylum protections in the U.S. because such speech “would not count as political opinion,” Reichlin-Melnick explained.
The rule would also eliminate gender-based asylum, severely restricting the ability of women to seek asylum from domestic abuse or gender-based violence, as well as restricting the ability of LGBTQ people to seek asylum due to their identity. “This could be also used or misinterpreted to bar claims based on gender identity or sexual orientation,” said Katie Sgarro, co-founder of Asylum Connect, a resource platform for LGBTQ asylum seekers. “This would lead to LGBTQ and HIV-positive rights activists being denied asylum and deported to their home countries where they’ve spoken out.”
The rule would eliminate gender-based asylum, severely restricting the ability of women to seek asylum from domestic abuse or gender-based violence.
Sgarro explained that the rule also redefines the notion of persecution. Under current asylum law, someone can seek protection if they have been threatened with harm, but the harm does not have to have been carried out. The new rule, Sgarro says, would require that an “asylum seeker would have to wait for someone to follow through on their threat.” In a country where participating in same-sex relationships is a crime punishable by death, someone would not be able to seek protection on this basis if people are only infrequently executed for being gay. In addition, LGBTQ people are often persecuted by community members or their own family—and such persecution would not qualify someone for asylum under the new rule.
“One execution because you’re gay or transgender should be enough,” Sgarro said. “This is not something you wait for in these environments.”
“American is a rare beacon of hope—even under this administration that hasn’t stood up for this population. It’s still one of the only countries in the world that welcomes LGBTQ people,” said Sgarro, whose organization, Asylum Connect, is calling for more public comments.
Another aspect of asylum that would be dramatically reshaped under the new rule would be to restrict asylum from those seeking protections from social groups such as gangs, terrorist organizations, and other nonstate actors. “The rule would redefine torture, and declare that those tortured by rogue officials could no longer qualify under the convention against torture,” Reichlin-Melnick said. As “very few governments are openly torturing people, the [U.S.] government could argue that they don’t deserve protection because their torture is against the law in their home country.”
The rule would also bar asylum seekers who have not reported their taxes even if they don’t have any income, or who have filed a tax return even one day late. The rule would also affect the one-year bar, a regulation in U.S. asylum law that bans someone from applying for asylum if they have been in the U.S. for more than a year. Currently, there are some exceptions to the one-year bar, and this rule would tighten even that opening, making applying after more than one year in the U.S. a significant negative factor in an asylum claim.
Even if an asylum seeker manages to overcome these hurdles, the rule has restructured the immigration justice system that rules on such cases. Under the rule, an immigration judge could refuse to hear an asylum claim by rejecting the asylum seeker’s claims on paper, thereby denying that person a hearing. This would particularly hurt asylum seekers without attorneys, and studies have already shown that asylum seekers without attorneys are much less likely to be granted asylum.
“The rule would also create new grounds for an asylum application to be frivolous,” said Reichlin-Melnick. “If it’s declared frivolous, you can never reapply. It bars the applicant from any relief at all.”
“The proposed changes to the asylum system will be devastating but at the moment people are not even getting asylum hearings because of the bans the Trump administration has enacted," wrote Gelernt in a statement to the Prospect.
The rule comes as the administration has announced a swath of immigration policy changes that would limit legal immigration and asylum. One such proposed rule, published on July 10, would ban asylum for anyone who had ever been in a country with COVID-19. The rule even allows the U.S. to block asylum seekers who have been in countries with other infectious diseases that might present a danger to the U.S.
“This means that if Trump is re-elected, they have already accomplished their mission of closing the country—that’s pretty frightening,” said Michael Kagan, University of Nevada Las Vegas law professor and director of the UNLV Immigration Clinic. “If Trump loses, Joe Biden’s team has a massive job in front of them to even return to the status quo pre-Trump.”
Trump isn’t letting up. The administration is soon expected to announce its intention to end Deferred Action for Childhood Arrivals—again, despite its recent defeat at the Supreme Court. And although the government backed down yesterday from its restrictive guidelines on international student visas, experts anticipate that the government could try again. In previous eras, Kagan said, even an anti-immigrant administration might draw the line between legal and illegal immigration, targeting “the unpopular groups. That’s not really the pattern of the Trump administration.”
“To the Trump administration and what it represents, there are no good immigrants,” Kagan says. “No one should think that they are exempt. Anyone who comes from another country, no matter what kind of paper you carry, whether you have a criminal record or not, or whether you have a college degree or not, you are targeted.”
“The pandemic has allowed [Trump policy adviser] Stephen Miller to enact his wildest dreams,” said Reichlin-Melnick. “What remains to be seen is if any of this will be permanent.”
This story has been updated.
