DOJ & DHS Issue New Rules On Asylum Seekers To Reduce Border Congestion

The Trump administration said Monday it will end asylum protections for most migrants who arrive at the U.S.-Mexico border in a major escalation of the president’s battle to tamp down immigration.

According to a new rule published in the Federal Register, asylum seekers who pass through another country first will be ineligible for asylum at the U.S. southern border. The rule, expected to go into effect Tuesday, also applies to children who have crossed the border alone.

The rule applies to anyone arriving at the U.S.-Mexico border. Sometimes asylum seekers from Africa, Cuba or Haiti and other continents arrive there, but the vast majority of migrants arriving recently come from Central America.

There are some exceptions, including for victims of human trafficking and asylum-seekers who were denied protection in a country. If the country the migrant passed through did not sign one of the major international treaties governing how refugees are managed (though most Western countries signed them) a migrant could still apply for U.S. asylum.

Attorney General William Barr said that the United States is “a generous country but is being completely overwhelmed” by the burdens associated with apprehending and processing hundreds of thousands of migrants at the southern border.

Migrants who claim credible fear when they reach the U.S. — but did not apply for asylum in a country they traversed through, whether Mexico, Guatemala, etc. — will thus be removed. The DOJ and DHS said that they expect the rule will allow them to more efficiently process asylum claims, which have recently backlogged the immigration system.

The policy is almost certain to face a legal challenge; the American Civil Liberties Union already signaled it would sue. ACLU attorney Lee Gelernt, who has litigated some of the major challenges to the Trump administration’s immigration policies, said the rule was unlawful.

“The rule, if upheld, would effectively eliminate asylum for those at the southern border,” he said. “But it is patently unlawful.”

U.S. law allows refugees to request asylum when they arrive at the U.S. regardless of how they did so, but there is an exception for those who have come through a country considered to be “safe.” But the Immigration and Nationality Act, which governs asylum law, is vague on how a country is determined “safe”; it says “pursuant to a bilateral or multilateral agreement.”

Right now, the U.S. has such an agreement, known as a “safe third country,” only with Canada. Mexico and Central American countries were considering a regional compact on the issue, but nothing has been decided. Guatemalan officials were expected in Washington on Monday, but apparently, a meeting between Trump and Guatemalan President Jimmy Morales was canceled amid a court challenge in Guatemala over whether the country could agree to a safe third with the U.S.

“Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits,” acting DHS Secretary Kevin McAleenan said in a statement.

The U.S. has faced an unprecedented number of migrants crossing the southern border this year, leading to overcrowding in detention centers and a backlog in immigration courts. President Donald Trump has called the situation a humanitarian and national security crisis.

Immigration courts are backlogged by more than 800,000 cases, meaning many people won’t have their asylum claims heard for years despite more judges being hired.