The Trump administration unveiled a sweeping new rule Monday that would effectively bar most Central American migrants, as well as migrants from dozens of other countries, from seeking asylum in the United States.
The regulation would dramatically narrow who is eligible by specifically targeting immigrants who cross into the country from the southern border.
The interim rule, issued by the Departments of Justice and Homeland Security, reportedly goes into effect Tuesday when it’s scheduled to be published in the Federal Register.
Here’s what the change means for asylum-seekers in the U.S.
What is the new rule?
The new rule says that any immigrant entering the U.S. from Mexico seeking asylum after passing through another country would need to first apply for asylum in at least one other country that is not their native country.
Under the rule, an immigrant coming from, for example, El Salvador or Honduras would have to apply for asylum in Guatemala first before then seeking asylum in the U.S.
A passage in the rule says it applies to “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.”
If they are denied asylum in those countries, then the migrants could apply for asylum in the U.S.
In addition, there are two other exceptions to the new asylum rule. If they can demonstrate that they have been “victims of a severe form of trafficking,” or if they have only traveled through a country or countries that aren’t signatories to specific international treaties intended to protect refugees and asylum seekers, then they can apply as U.S. asylum-seekers.
To be eligible for asylum in the U.S., a person must be unable to return to their home country based on a fear of persecution due to their race, religion, nationality, political affiliation, or membership in a specific social group, according to the rule. People from any country can make a legal claim of asylum either on U.S. soil or at a U.S. port of entry.
In a release accompanying the new rule, DHS Acting Secretary Kevin McAleenan said: “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.”
But immigration advocates said forcing people to apply for asylum elsewhere is problematic because most of the other countries migrants travel through on their way to the U.S. are rife with violence and corruption.
“To ask people to apply for asylum in a country where the asylum system is limited and where they face persecution really flies in the face of protections we established in our own asylum system,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council.
What is the Trump administration’s argument for the rule?
As part of its justification for the shift, the administration cited the dramatic increase in families and children arriving largely from the Northern Triangle countries of El Salvador, Guatemala, and Honduras.
A total of 94,897 migrants were apprehended near the U.S.-Mexico border in June, according to U.S. Customs and Border Protection. That marks a 28 percent drop from May but is still three times higher than June 2018.
Many of those families seek some form of legal protection, like asylum, once they reach the U.S. The accompanying increase in the number of legal claims has only added to the years-long backlog in American immigration courts, in addition to stretching resources thin at existing border patrol and immigration detention and housing facilities.
There are currently more than 900,000 cases pending before the immigration courts. In its justification for the new rule, the administration said more than 436,000 of those include an asylum application.
The Trump administration also argued that because the majority of asylum applications from Central American migrants are ultimately denied, there need to be more limits on who can make an asylum claim in the first place.
“The large number of meritless asylum claims places an extraordinary strain on the nation’s immigration system, undermines many of the humanitarian purposes of asylum, has exacerbated the humanitarian crisis of human smuggling, and affects the United States’ ongoing diplomatic negotiations with foreign countries,” the rule said.
A review of Department of Homeland Security data shows that in 2017, migrants from the Northern Triangle countries accounted for 41 percent of all asylum claims made in the U.S., and 32 percent of all asylum cases granted.
The denial rate for cases that go through U.S. immigration courts was 77 percent for asylum-seekers from El Salvador, 79 percent for people from Honduras and 81 percent for those from Guatemala, according to Syracuse University’s TRAC database.
But migrants who have legal representation are much more likely to be granted asylum than those without a lawyer.
In 2017, according to DHS data, the three leading countries of origin for people granted asylum were China (21 percent), El Salvador (13 percent), and Guatemala (11 percent).
But the new rule would affect many more people than just those arriving from Central America. According to Customs and Border Protection data, more than 100 countries of origin were represented by people crossing the southwest border in 2018, including migrants from Brazil, India, Ecuador, Nicaragua and Bangladesh.
The Trump administration also argued that forcing migrants to apply for asylum in other countries “will better position theUnited States as it engages in ongoing diplomatic negotiations with Mexico and the Northern Triangle countries (Guatemala, El Salvador, and Honduras) regarding migration issues.”
Will the rule face a legal challenge?
The new asylum rule will be “immediately effective” when it is published Tuesday, according to a senior Trump administration official. . It is not retroactive, so anyone who has already made an asylum claim will continue through the process under the previous standards.
But the rule is expected to be challenged in court by a number of groups, which could delay its implementation.
Lee Gelernt, the deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union, vowed to quickly challenge the rule.
“The Trump administration is trying to unilaterally reverse our country’s legal and moral commitment to protect those fleeing danger,” Gelernt said in a statement Monday. “This new rule is patently unlawful and we will sue swiftly.”
The Trump administration argued in the rulemaking that it has broad authority when it comes to asylum policy.
“The current statutory framework leaves the Attorney General…significant discretion to adopt additional bars to asylum eligibility,” the rule notes in one passage.
Previous controversial Trump policies on immigration, such as a travel ban on Muslim-majority nations and a rule forcing asylum-seekers to remain in Mexico, have been challenged but upheld in some form by higher courts.
Gretchen Frazee contributed to this report.