Skip to content Skip to navigation

Explainer: How Trump is trying to dismantle the U.S. asylum system

News & Commentary  |  By Peniel Ibe, Aug 9, 2019

People fleeing violence or danger in their home countries should be welcomed with compassion – not confronted by overwhelming obstacles to seeking asylum in the United States.

But the Trump administration has repeatedly imposed new restrictions on asylum seekers, making it even harder for people to claim protection in the United States. Through a barrage of executive actions, cruel policies and wholesale changes in the law, the administration is punishing migrants who make the courageous, often torturous journey to the U.S. while also undermining the ability of the system to receive and offer refuge to asylum seekers.

Here are some of the significant ways the Trump administration has sought to dismantle the asylum system – and how these restrictions will hurt migrants and communities in the U.S.

Narrowing who is eligible for asylum

Under U.S. law, an asylum seeker must prove a well-founded fear of persecution in their country of origin based on religion, race, nationality, political opinion, or membership in a “particular social group.” The Trump administration has made changes to how these eligibility requirements are defined, drastically reducing the number of people who are eligible for asylum.

The administration has made these changes through the “self-referral authority” of the U.S. Attorney General. Unlike other courts in the U.S., immigration courts are under the jurisdiction of the Justice Department. As the head of the Justice Department, the attorney general has exercised a previously little-used authority to reopen and refer immigration cases to himself for a new decision, essentially rewriting long-standing legal precedent in the process.

Policies that have taken effect:

Groups potentially affected by changes in eligibility requirements include:

Family members: In July 2019, Attorney General William Barr issued a decision that being persecuted based on threats against a family member would usually not qualify someone for asylum – dealing more roadblocks to families seeking safety in the United States. Essentially, being a member of family does not count as being part of a “particular social group” under the policy.

Victims of domestic or gang violence: In June 2018, then-Attorney General Jeff Sessions announced that most people fleeing domestic violence or gang violence would not qualify for asylum in the United States – a decision that affects thousands of people who have escaped horrific situations in their home countries.

Increasing obstacles in applying for asylum

From the beginning of this administration, President Trump has launched a systematic campaign to dismantle the asylum system. Within the first few months of taking office, the president issued an executive order to penalize asylum seekers and undermine the fair processing of their claims – changes that violated the U.S.’s obligations to provide asylum under the U.S. and international law.

Legal challenges to parts of this executive order that were implemented through subsequent Department of Homeland Security memoranda are making their way through the courts. One such challenge resulted in a federal court blocking the arbitrary detention of asylum seekers, ordering that each case should be reviewed for conditional release eligibility.

The administration has further undermined the asylum system by:

Policies that have taken effect:

Slowing the processing of asylum claims: In early 2018, U.S. Citizenship and Immigration Services (USCIS) announced it would process recent affirmative applications for asylum before older ones – adding years to the time that asylum seekers who applied prior to 2018 have to wait for their interviews.   

In March 2019, the administration announced that it would close 21 international immigration offices, a move that will further increase the backlog in applications to USCIS.

In July 2019, USCIS leadership encouraged USCIS employees to volunteer their time to assist ICE in immigration enforcement instead of processing visa applications, which could further slow asylum processing.

Policies that were struck down:

Barring asylum seekers who enter the U.S. between ports of entry: Many migrants crossing the border enter the U.S. between entry points because the Trump administration has made it more difficult to seek asylum at official ports of entry. Border agents repeatedly turn people away, claiming that ports are full.

In May 2018, the Justice Department began implementing a “zero tolerance” policy, prosecuting all adult immigrants who cross the border between ports of entry – including asylum seekers. And because there was no exception for people with kids, children were separated from their families at the border.

As the administration’s attempt to punish asylum seekers was continually met with resistance by the courts, the president lashed out. In November 2018, the administration issued an interim final rule and presidential proclamation to bar any immigrants at the southern border from seeking asylum if they entered between ports of entry. The rule amounted to an “asylum ban” and was challenged in the courts.

In August 2019, a federal district court struck down the policy, stating that it clearly violated federal law and permanently blocking it from taking effect.

Increasing the detention of asylum seekers: Earlier this year, the attorney general issued a decision to strip asylum seekers of their right to an immigration court custody hearing that would determine whether they can be released from detention on bond – another way of holding them in detention indefinitely. The decision essentially made Immigration and Customs Enforcement the power to be judge and jailer. A federal court also blocked this policy.

Outsourcing asylum obligations to countries that don’t have the capacity to meet them

Policies that have taken effect:

“Remain in Mexico” policy: In January 2019, the Trump administration began implementing a policy that forces Central Americans seeking asylum to return to Mexico – for an indefinite amount of time – while their claims are processed. This policy was implemented after failed attempts by the government to coerce Mexico into a “safe third country agreement.” If Mexico signed this agreement, asylum seekers passing through Mexico to the U.S. must file for asylum first in Mexico.

This “Remain in Mexico” policy – officially called by the misnomer “Migrant Protection Protocols” – is a clear violation of both U.S. and international law. The policy actually puts asylum seekers in danger and goes directly against Congress’ intent to protect vulnerable people from persecution. The month before the policy took effect, two Honduran teenagers traveling with the migrant caravan to seek refuge in the U.S. were killed in Tijuana after leaving a shelter for underage migrants.

The policy was initially implemented at the San Ysidro, California port of entry and was expanded to the entire southern border. The policy is being challenged in the courts, but in the meantime, thousands of asylum seekers are being sent to Mexico to wait, where almost none of them have access to attorneys to help with their claims.

Guatemala as a “safe third country”: The Trump administration has entered a “safe third country” agreement with Guatemala, which could be a violation of U.S. refugee protection laws. It’s unclear how this policy will be implemented until both governments release more details, but it was immediately denounced by U.S. and Guatemalan migrant rights groups. 

Guatemala was coerced into signing a safe-third country agreement, through threats of tariffs, a travel ban, and taxes on remittances. Signing this agreement also bypasses a ruling by the Guatemala Constitutional Court blocking the president from signing a deal without consulting the Guatemalan Congress. 

Guatemala cannot qualify as a “safe third country” as it lacks the infrastructure to offer refuge to the number of people who seek it. The country is also grappling with sociopolitical, economic, and environmental issues that diminish its ability to support asylum seekers.

Policies that were struck down:

Additional roadblocks: In July 2019, prior to entering into its agreement with Guatemala, the Trump administration sought to block immigrants who travel through another country before reaching the U.S. from applying for asylum in the U.S. if they didn’t apply in the previous country. A federal judge blocked the rule.

How we can resist Trump’s anti-immigrant agenda

Over the course of its first two years, the Trump administration has made every effort to dismantle the U.S. asylum system, making use of every tool at its disposal. Instead of endangering our communities with illegal and inhumane policies, U.S. authorities should concentrate their resources on quickly processing asylum requests and safeguarding human rights.

Here are some steps you can take to resist Trump’s immigration agenda.

1. Defund hate: Tell Congress that we are a better nation when we accept with open arms those fleeing violence and poverty. Congress has the power to significantly cut the budgets of ICE and the Border Patrol – tell them to defund hate.

2. Use good messaging: Talk about immigration in positive productive ways. How we talk about social justice issues matters. Here are some tips to help you talk about immigration to build support for more humane policies. And check out this AFSC resource for more research-based tips on how to talk about issues to create social change.

3. Display love: Make your own community more welcoming by printing and displaying AFSC posters – and use them at the next rally or protest you attend. Here are posters to show your support for immigrant rights and justice.

About the Author

Peniel is the policy associate at AFSC. She is interested in international development, humanitarian crisis management and public policy. She is an immigrant from Nigeria who recently relocated to the United States and is advocating for the rights of others like her.