As the national conversation surrounding the so-called migrant caravan reached fever pitch earlier this November, President Trump took the opportunity to sign his most legally controversial immigration policy yet.
The so-called asylum ban places broad restrictions on the rights of asylum seekers that enter the country through illegal border crossings. According to acting Attorney General Matthew Whittaker, the new policy aims to reduce the number of meritless asylum claims that place an undue burden on the nation’s court systems. Under the terms of the ban, only those migrants that present themselves at legal points of entry would be eligible for asylum.
A History of Hardline Immigration Policies
The asylum ban is the latest in a long line of policies aimed at curbing, what Trump claims is, an ongoing immigration crisis that poses a real and present national security threat to the United States. This is despite the fact that illegal immigration apprehensions at their fourth-lowest rate in four decades.
Prior to the current executive order, Trump has severely curbed the intake limits on refugee admissions from 110,000 to 30,000 currently. He has also implemented strict immigration policies that have severely slowed down the processing time for green cards and visas while handing agencies broad powers to deny applications. Other proposed changes include the abolition of the Deferred Action for Childhood Arrivals (DACA) as well as the notorious travel ban which has all but barred citizens of many Muslim majority countries from entering the country.
What Will the Asylum Ban Mean for Immigrants?
While the current ban is currently only in effect for 90 days, the consequences should be apparent almost immediately.
Under existing law, any immigrant that enters the US illegally but claims a credible fear of persecution due to their ethnicity, nationality, religion, political opinion, or social allegiances is allowed to plead their case in front of a court. As these hearings can take months or even years to complete, the claimant is usually given leave to work and reside freely within the country over the interim period. Although the claimant may eventually be found ineligible for asylum, they may still qualify for a reduced form of legal protection known as a withholding of removal which basically allows them to remain within the country albeit without any additional rights to work.
Under the new law, even asylum seekers who are arriving through designated ports of entry will find it far more difficult to meet qualification criteria for acceptance into the United States. Trump’s policy replaces the previous credible fear standard with a new reasonable fear standard that requires immigrants to prove that they not only fear the threat of persecution but that this outcome is extremely likely if they are returned home. This standard had previously only been applied to immigrants that had a history of deportation and return to the United States or individuals with a serious criminal record. If claimants manage to pass this screening process, then they will still only be eligible to have their case heard in front of a judge. Based on this new criteria, experts suggest that the acceptance rate for asylum seekers may fall to a low of 25%.
The asylum ban also requires mothers and their children to prove their eligibility separately.
Is The Asylum Ban Legal?
According to most legal experts, this new policy violates both international and US law in a number of ways.
- The United States is currently a participating member of the 1967 Protocol Relating to the Status of Refugees. This protocol states that any signatory of the agreement may not deny an immigrant who is fleeing their original country due to the fear of persecution. While all asylum seekers may not be accepted, under the protocol all are free to have their case heard in court. This new executive order would compel the United States to withdraw from the agreement.
- The US Immigration and Nationality Act clearly states that any immigrant is free to apply for asylum status whether they entered the United States legally or not.
- The fact that the policy was rolled out in the form of an immediate regulation may represent a circumvention of accepted review processes.
Indeed, the ACLU and other civil protection groups have already filed suit against the administration. While these suits are expected to go against the asylum ban, most experts expect the Trump administration to appeal the denial and take the case to the Supreme Court. Whether the conservative-majority judicial branch will rule in their favor remains to be seen.
This is definitely a story that has a way to go before it reaches a resolution.