Trump to deny asylum to most immigrants at Mexican border
The policy shift will nearly wipe out law guaranteeing right to seek protection. Legal fights are expected.
WASHINGTON — The Trump administration moved Monday to in effect end asylum for the vast majority of migrants who arrive at the U.S.-Mexico border, an enormous shift in policy that could block hundreds of thousands of people from seeking protection in the U.S. — and is certain to draw legal challenges.
The new rule, published in the Federal Register and set to take effect Tuesday, would bar asylum claims from anyone who has passed through another country en route to the U.S., which essentially would cover anyone other than Mexican residents, who make up a small fraction of asylum applicants.
Only in rare cases, such as when a migrant applies for asylum elsewhere and is denied, would a person be eligible to apply for protection in the United States.
The rule would, in effect, nearly wipe out U.S. asylum law, which establishes a legal right to claim protection for anyone who arrives at the U.S. border and can make a case that they face torture or persecution at home. The law applies regardless of how a migrant reaches the border.
The law currently provides a major exception in cases in which the U.S. has negotiated a “safe third country” agreement with another government. Under those agreements, such as the one the U.S. has with Canada, migrants must apply in the first safe country they reach.
The new plan would short-circuit that, in effect requiring migrants to apply in any country they land in, whether the U.S. considers that country safe or not.
The new rule was issued by the Justice and Homeland Security departments, which administer the asylum system, and was written to take effect immediately when it’s formally published Tuesday. It would apply only to those arriving in the U.S.,
not migrants already in the country.
The sweeping change drew an immediate threat of a legal fight.
“This rule is inconsistent with both domestic and international law, and we intend to sue immediately to block it,” said Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project.
“If allowed to stand, it would effectively end asylum at the southern border and could not be more inconsistent with our country’s commitment to protecting those in danger.”
The rule would most directly affect Central American families and unaccompanied minors, who account for most of a recent surge in migrants arriving at the border. But it applies to any nationality, including the large numbers of Haitians, Cubans and Africans who transit South and Central America and Mexico in order to claim asylum at the border.
“With limited exceptions, an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum,” the rule states.
The new policy appears to be a response to the administration’s failure, despite intense lobbying, to obtain an agreement with Mexico — or countries farther south — to serve as a “safe third country.”
Guatemalan President Jimmy Morales canceled a trip to Washington set for Monday after reports that the so-called Northern Triangle nation, one of the primary countries of origin for migrants arriving at the U.S. southern border, would sign a “safe third country” agreement.
A suit has been filed in Guatemala to block such a move, and the Guatemalan government said in a statement Sunday that it had never contemplated an agreement.
Eric Olson, a Central America expert at the Wilson Center, a nonpartisan think tank, said the new rule has led to “a lot of headscratching” among the region’s officials.
“After the Guatemala piece fell through over the weekend, this appears to have been their backup plan,” Olson said. “But there are still a lot of questions about the legality of it ... and the practicality of it. I don’t think anyone in Central America is prepared to go along.”
By Monday afternoon, the imminent new rules already were causing confusion and worry among migrants at the border.
Alberto Varizonta, a Cuban, has been camping with his wife and baby for two months near the foot of the bridge between Matamoros, Mexico, and Brownsville, Texas, waiting for his number to come up on an unofficial waiting list so he can apply for asylum. He said he had heard about the new rules but didn’t understand whether they would apply to him, or just Central Americans.
“What’s going to happen tomorrow?” he asked by phone from a plaza near the bridge. U.S. and Mexican immigration officials have not told the asylum seekers anything, he said.
Varizonta, 35, had run out of money and hope of crossing legally.
“I will probably cross the river tonight,” he said. “These problems won’t resolve themselves. There’s no other solution.”
Late Monday, personnel at the U.S. Citizenship and Immigration Services’ asylum branch received lastminute guidance on how to implement the new rule, which was due to take effect a few hours later.
“We are once again being asked to adapt, and to do so with very little time to train and prepare,” John Lafferty, the head of the branch, told employees in the guidance, obtained by The Times.
The rule would place a major burden on Mexico, which has already been inundated with a record number of asylum requests. Mexico’s Commission for Aid to Migrants projects that it will receive 80,000 asylum requests this year, up from 29,648 last year and 2,137 five years ago.
Last month, Mexico agreed to ramp up its immigration enforcement, and in exchange, President Trump agreed to hold off on imposing tariffs on Mexican imports for 45 days. Many in Mexico reacted angrily Monday, saying Trump had reneged on that agreement and had unilaterally imposed a policy that would hurt Mexico.
At a news conference, Mexican Foreign Secretary Marcelo Ebrard said Mexico disagrees with the new rule. In a statement, the foreign secretariat said the changes were made “unilaterally, within the scope of the jurisdiction of the United States.”
Mexico plans to maintain its current policies and would not send migrants with legitimate asylum claims back to their home countries, the statement said, adding that Mexico will watch to see what effect the new U.S. rule has.
The rule is the latest attempt — and one of the most aggressive — by the administration to curb asylum protections. Two years into Trump’s administration, his harsh rhetoric and intensified efforts to step up enforcement and crack down on immigration have largely failed to reverse a recent surge in migration.
Apprehensions at the border decreased in June by more than 28%, but they remain at the highest levels in about a decade.
Many of the administration’s efforts to scale back or dismantle the U.S. asylum system, such as denying protections to those who cross the border between official ports of entry, have been rejected by the courts.
Acting Homeland Security Secretary Kevin McAleenan said the change in policy is necessary despite a recent $4.6-billion bill to address humanitarian challenges at the border, and would deter migrants crossing through Mexico “on a dangerous journey.”
“The truth is that it will not be enough without targeted changes to the legal framework of our immigration system,” McAleenan said in a statement Monday.
But Democrats denounced the change as illegal and cruel.
“This cruel new asylum rule perfectly showcases the administration’s utter disdain and disregard for immigrant communities and communities of color,” House Speaker Nancy Pelosi (D-San Francisco) said in a statement.
“The administration has clearly overreached their authority and violated the law with these restrictions, which will be swiftly and successfully challenged in the courts,” she predicted.
Sen. Dianne Feinstein (D-Calif.) said asylum seekers were “fleeing some of the most violent, dangerous countries in the world such as El Salvador, Guatemala and Honduras.”
“Allowing them to seek protection in the United States isn’t a loophole, as the president says and Republicans continue to repeat, it’s a fundamental part of what makes us American.”
The new plan includes some exceptions: If a migrant has been trafficked, has applied for protection in a prior country and was denied or has passed through a country that is not a signatory to the primary international treaties governing refugees. Mexico and all the countries of Central America have signed those treaties, however.
The president often rails against asylum seekers, broadly maligning them as engaging in fraud. Only about 15% to 20% ultimately win their asylum cases, which advocates say is a reflection of the difficulty of the U.S. system, rather than illegitimate claims.
U.S. asylum law allows protection for people who can show they fear persecution based on race, religion, nationality, political views or membership in a particular social group in their home country.
Immigration courts are backlogged by more than 800,000 cases, meaning many people won’t have their asylum claims heard for years.
During the 2018 budget year, there were 162,060 claims filed, and 13,168 were granted, according to the Associated Press.
Michael Knowles, president of Local 1924 of the American Federation of Government Employees, a union representing federal asylum officers in the Washington area, said he spent the morning fielding calls, texts and office visits from officers concerned and shocked by the new rule.
“It flies in the face of the law as we have been trained and guided with great precision for decades,” Knowles said.
“They’re not even changing the law; they’re twisting it beyond recognition.”