In the past month, the Trump administration has responded to the arrival of thousands of asylum seekers, with deployed military forces, tear gas, and attempts to block legal entry into the US. President Trump has all but closed the US-Mexico border, and combined his efforts with rhetoric about the danger on the asylum seekers. The thousands of migrants stranded in border cities like Mexicali and Tijuana are not even sure their asylum case will ever be heard. Yet, keeping migrants at the border has also not benefited the Trump administration. The efforts have only placed additional strain on the asylum process and created a bottleneck at the border. It is unlikely that even if Trump did close the border, it would prevent individuals from attempting to place their asylum case.
Much of the Trump administration’s efforts stem from a political precedent to block immigration, as well as a belief that the Central American asylum seekers are bringing “frivolous” cases and attempting to use asylum as a backdoor into the US. Trump has referred to the norm in asylum policy to allow asylum applicants to remain in the US outside of detention as a “catch and release” policy, that he uses to imply an inherent harm from admitting asylum seekers. The problem with the Trump administration’s policies and rhetoric in this issue is that they fundamentally misrepresent the asylum process and create policy that disadvantages migrants and challenged the already strained asylum process.
Current United States law grants individuals fleeing their home country due to a well-founded fear of persecution on account of race, religion, nationality, and/or membership in a particular social group or political opinion a path to asylum status. Asylum seekers are not guaranteed asylum in the US, but international law does preserve their right to at least seek asylum. There are two processes for asylum in the US according to USCIS, affirmative and defensive asylum. Affirmative asylum applicants are individuals who have arrived in the US and are for the first time applying for asylum. During affirmative proceedings, cases are heard by asylum officers who determine if applicants meet the definition for asylum seeking. If an individual is found to be ineligible for asylum, they appeal their case and enter defensive asylum proceedings. Individuals detained in the US for being undocumented may also enter defensive asylum proceedings if it is within one year of entry. If denied asylum in defensive asylum proceedings, judges can determine if the individual qualifies for relief from removal, and this decision can be appealed. In the case of neither action, the migrant enters deportation proceedings.
Despite President Trump’s statements that “nobody’s coming into our country unless they’re coming legally,” US law allows migrants, to apply for asylum regardless of means of arrival or immigration status. In fact, individuals must be present in the US to claim asylum; meaning, migrants are legally allowed to cross at border checkpoints and claim asylum even without other documentation or status. Even undocumented migrants or “illegal immigrants” residing in the US may claim asylum within one year of arrival. Asylum applicants, no matter their method of entry, are typically allowed to remain in the US while their application is being processed, typically outside of detention. The lack of detention is both a cost measure, as it would cost $134 per bed per day, and logistical due to asylum seekers often arriving as family units.
Gaining asylee status is not easy in the US either. In 2018, only 20.9% of asylum applications were granted. Most US asylum claims are from Central America. However, between 2012 and 2017, the US denied 88% of asylum applications from Mexico, 79% from El Salvador, and 78% from Honduras claiming that people were fleeing generalized violence like cartels, thus not qualifying as persecution. US policies such as the 1996 Illegal Immigration Reform and Immigrant Responsibility Act have contributed greatly to the destabilization of countries in Central America which has forced individuals, especially families to flee. Despite the lengthy and dangerous journey to the US, without assurance of ever receiving asylum, many migrants feel as though they have no choice.
Yet, even before mass asylum seeker movements such as the caravan, Trump was maneuvering to complicate and limit the asylum seeking process even more. Trump’s recent “last in, first out” policy changed the processing of asylum applications so those most recently filed were identified as priorities even further limited the ability of lawyers to build asylum claims for their clients and find documentation to prove well-founded fear. Under Trump, former Attorney General Jeff Sessions also used his power to limit the appeals in asylum cases making asylum even more difficult to obtain. These additional legal barriers have not prevented migrants from claiming asylum or alleviated the backlog of asylum applications in the US, but have disadvantaged newly arrived Central American asylum seekers.
Perhaps the most legally controversial step in terms of limiting asylum has been Trump’s attempts to force asylum seekers to remain in Mexico. The Trump administration could potentially cite Section 235 in the Immigration and Nationality Act, which allows the attorney general to send migrants to a contiguous foreign country while waiting status, but this may not apply to asylum seekers. The US could also attempt to create a “safe third country” agreement with Mexico, similar to the current agreement with Canada, which essentially requires migrants to claim asylum in the first “safe” country they arrive rather than continuing to the next to claim asylum. This would force all asylum seekers from Central America who travel by land to the US to claim asylum in Mexico unless they could prove Mexico was not safe.
Trump has not made any legal arguments for this policy yet but intends to work with the incoming Mexican government to implement the “Remain in Mexico” policy. Though, he must wait for the new administration in Mexico to adjust Mexican immigration policy to allow migrants applying for asylum in another country to remain in Mexico before enforcing this. However, the “Remain in Mexico” policy would also require the US to guarantee that asylum seekers awaiting processing in Mexico were not in danger, a requirement of international law. The policy attempts to do so by allowing migrants to prove a “credible fear” of staying in Mexico during their asylum interview which would admit them to the US, but it is unclear how migrants would make this standard. Applying for asylum in Mexico is also problematic considering the country faces some of the same problems that migrants are fleeing. Particularly since the migrants are often staying in already strained border cities that face their own problems with crime and trafficking.
The Trump administration’s efforts to lump Central American asylum seekers with other immigrants through harsh rhetoric and attempts to restrict entry can only operate so long. Asylum policy both on the national and international level are working against his intention in hopes of protecting vulnerable populations fleeing distress. Additionally, the destabilization of Central American countries caused by the US will only continue to displace asylum seekers in greater numbers. Neither the US or Mexico can sustain having displaced populations living in already fragile communities along the border filing ineffectively into a backlogged asylum system. However, the Trump administration seems unwilling to solve structural issues in immigration that create inefficiencies and the necessity for undocumented entry instead choosing to criminalize vulnerable populations.