Trump’s latest plan to deny asylum seekers protection is illegal

President Johnson signs the 1965 immigration law in New York Harbor.
President Johnson signs the 1965 immigration law in New York Harbor.
Image: AP Photo
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The Trump administration introduced a new rule that would essentially ban Central American immigrants from seeking asylum in the US today, the latest attempt to radically rewrite US immigration policy outside of Congress. 

The new rule, issued jointly by the Department of Justice and the Department of Homeland Security, bars anyone who travels through what is called a “safe third country” from applying for asylum in the US. The rule, which isn’t open to public comment and goes into effect July 16, will “enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility,” it states. Specifically, the rule will:

…add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States. 

Asylum seekers from Guatemala, Honduras, and El Salvador generally travel through Mexico via land to reach the US. Just as with Trump’s other attempts to radically change US immigration policy by revising agency rules and using emergency executive orders, civil rights groups responded immediately with planned court challenges.

“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 Immigrants’ Rights Project of the American Civil Liberties Union. “This new rule is patently unlawful and we will sue swiftly.”

The Trump administration’s termination of DACA—the Deferred Action for Childhood Arrivals—program, its attempt to expel hundreds of thousands of Temporary Protected Status residents in the US, and a plan to stop providing migrant children access to education and lawyers, are all being challenged in courts right now.  In December, the Supreme Court denied the administration’s request to stay an injunction on a rule barring asylum seekers who don’t cross at legal ports of entry. 

Immigration experts say the new rule breaks laws written by Congress and signed by previous presidents. It also contravenes international treaties the US adopted decades ago. 

UN Convention on Refugees 

The internationally-accepted definition of refugee, which the US agreed to, was first set in the 1951 Convention Relating to the Status of Refugees. According to the convention, a refugee is someone who:

As a result of events occurring before 1 January 1951 and owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Despite chairing the meetings that resulted in the 1951 convention, the US didn’t sign it. But it did sign on to an amended 1967 version, which extended protections for asylum seekers beyond 1951. The convention continues to apply to people who are seeking asylum in the US today. 

The international agreement also states that signatories cannot expel refugees except on the grounds of national security or public order, which have to be proven through an established legal process. Countries also do not have a right to legally prosecute refugees for entering their country illegally, according to the convention, nor can they return them to countries—their home countries, or others—where they might face threats to their safety. 

There is no “safe third country” provision in the UN convention, which essentially doesn’t allow states to refuse asylum without due legal course.

Congressional laws on immigration 

The Immigration and Naturalization Act of 1965, signed by president Lyndon B. Johnson at the Statue of Liberty, abolished quotas that had limited immigration from certain countries and favored immigration from certain European ones. 

A 1996 amendment to that law addresses the “safe third country” idea, specifically stating that an asylum seeker in the United States can be denied protection if he or she: 

…pursuant to a bilateral or multilateral agreement, to a country in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection. 

But the only country that the US now has such a “bilateral or multilateral agreement” with is Canada. The Trump administration’s plans to sign such an agreement with Guatemala appear to be in tatters after the Guatemalan president postponed a planned trip to Washington, DC on July 14, specifically because Guatemalan courts said the president didn’t have power to make such a decision.

“This is an end run around the Congressional requirement for a formal agreement,” and the requirement that any third party country have a “full and fair process” for adjudicating asylum cases, said Georgetown University law professor Philip Schrag. Guatemala has a total of three officers who interview asylum seekers, he noted, who would be overwhelmed by the tens of thousands of asylum seekers a month coming to the US.

In 1980, the US Congress also passed the Refugee Act after an 85-0 vote in the Senate. Americans were eager to welcome Vietnamese displaced by the Vietnam War. The law raised the annual ceiling for refugees and changed the US definition of refugee to an individual with a “well-founded fear of persecution,” the same wording used in the UN convention.

The US has a long tradition of breaking international promises and failing to uphold conventions it has signed, mostly with impunity. Other countries may face consequences (typically sanctions) for their failure to comply with international agreements, but the way international organizations—and the world—are set up makes the US essentially unaccountable

The Trump administration is already pressuring Congress to pass new laws that would reduce protections for migrants coming to the US. Today’s announcement suggests it is pushing for a wholescale restructuring of what it means to declare asylum as well.