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What you need to know about Trump's asylum ban

News & Commentary  |  By Carly Goodman, Nov 26, 2018

People walk together in the migrant caravan in Mexico.

Photo: AFSC / Kathryn Johnson

In November, the Trump administration announced sweeping changes to the asylum system, blocking people who enter the U.S. between ports of entry from seeking asylum. AFSC spoke out against the government’s cruel attempt to limit the ability of individuals taking refuge in our country to seek asylum. 

The ACLU and other advocacy groups sued the administration for effectively introducing an asylum ban. On Nov. 19, a federal judge suspended the ban, ordering the Trump administration to resume accepting asylum claims from migrants – no matter where or how they entered the U.S. – as the lawsuit makes its way through the courts. 

Here is what you need to know:

What is asylum?

Seeking asylum is a life-saving legal right under international and U.S. law. A person already in the country or arriving at a port of entry can seek this humanitarian protection in the United States if they have suffered persecution or have a well-founded fear of persecution at home on the basis of one of five grounds: race, religion, nationality, membership in a social group, and political opinion. 

The difference between refugees and asylum seekers is that refugees apply for status from outside the United States (or another country) whereas asylum seekers are already in the United States or arriving at its borders when they apply. 

The United States has a mixed record when it comes to resettling people fleeing persecution – famously it turned away a ship of mostly Jewish refugees seeking protection from the Nazis in 1939.

But since adopting the Refugee Act of 1980, the United States has been obligated to welcome refugees, bringing the country in line with international standards, specifically the 1951 U.N. Convention and the 1967 Protocol Relating to the Status of Refugees, which the United States ratified in 1968. The 1980 Act also created a statutory right to seek asylum. Since the 1980s activists and advocates have pushed to make the right to seek asylum more robust in the United States. 

What changes is Trump making in this new asylum ban?

First it's important to note that the Trump administration has been taking dramatic steps to end humanitarian immigration, including by reducing refugee resettlement and terminating Temporary Protected Status for hundreds of thousands of U.S. residents who fear returning to dangerous countries of origin.

The administration has also taken draconian steps to undermine asylum, which it seems to regard as a “loophole.” This is part of a broader effort to curtail nearly all immigration to the U.S. and to dissuade people from asserting their legal right to seek asylum. 

You will remember that earlier this year the administration began criminally prosecuting asylum seekers who crossed the border between checkpoints – even though Border Patrol agents have been reportedly turning asylum seekers away at ports of entry or forcing them to wait for weeks or longer before entering. This policy led to the separation of more than 2,500 children from their parents - and a critical public outcry. Trump’s attorney general also overturned important legal precedents to try to make it almost impossible for people fleeing domestic violence and gang violence to find haven in the U.S.  

Now Trump is taking his attack on asylum a step further. The administration has issued an interim final rule and proclamation, effective midnight Nov. 10, that says that people who enter the country between border checkpoints will be ineligible for asylum. In the law governing immigration, the language is clear that people can claim asylum once they are in the U.S., whether or not they arrived at a designated port of entry.

This flagrantly disregards U.S. and international law – and the rule attempts to answer that by allowing some people who are made ineligible for asylum because of the rule to apply for an alternative status. But this alternative status comes with fewer protections, no pathway to permanent status or citizenship, and a higher burden of proof.

What will this mean for asylum seekers and immigrants?

Under current law, a person within the U.S. can apply for asylum whether they entered with authorization or crossed the border between checkpoints, because the system recognizes that humanitarian protection is a matter of life or death. Now people arriving at the U.S.-Mexico border will be forced to choose: waiting for weeks or longer at ports of entry or crossing between checkpoints and risking deportation without a fair hearing of their asylum claims. 

People will still be able to apply for protection, but the higher screening standard will mean many fewer people will receive any protection at all. And unlike asylum, the alternative status won’t offer people a path to permanent status.

Using a presidential proclamation to make a whole group of people ineligible for lifesaving humanitarian protection sets a horrifying precedent, and issuing this rule without undergoing public scrutiny undermines important due process and the rule of law. 

What does this asylum ban have to do with the migrant caravan?

There is no border crisis that threatens Americans, but the Trump administration continually frames migration as a threat. The president has been using the idea of the migrant caravan to build support for his punitive, xenophobic policies and to justify extreme proposals that undermine the entire system of asylum.

Fearmongering around people seeking asylum in the U.S. is being used to build support for a system of indefinite detention of families and children. Forcing people to chokepoints at the border and then making it impossible for them to make their claims may create chaos and suffering – and it could feed public fear and antipathy toward newcomers.

The fact is, border crossings are not surging and are near historic lows. And vulnerable, courageous people seeking protection deserve our compassion, not fear.

What can we do to ensure humane treatment for all?

Everybody deserves to be treated humanely, and it is imperative to protect and expand our asylum system to save lives. Here are three things you can do to help:

1. Choose your words carefully. Calling migration a crisis feeds punitive and exclusionary policies. Check out our tips on how to talk about the migrant caravan to build support for humane treatment.   

2. Pay attention. The Trump administration assumed nobody would care when it separated thousands of children from their parents at the border. Public response has helped the still incomplete effort to reunite families. Our continued attention and outspoken resistance to these efforts to undermine the rights we hold dear will be important in the policy debates ahead.

3. Donate to support the people of the migrant caravan and AFSC’s work in the region, at the border, and advocacy. Our team has traveled with the migrant caravan and is now assessing where our expertise and resources can make the greatest difference. We're also convening faith and human rights groups in the U.S. to develop a visible, moral response to this human rights emergency. Donate today to support our efforts.

 

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