Go away. That’s the message the Trump administration is sending to migrants at our southern border. Under a new policy being implemented, fear of domestic or gang violence will no longer be accepted as grounds for asylum. This follows a decision by Attorney General Jeff Sessions that people making such claims will be turned back by border officials before they can plead their case in court. Announcing the decision last month, Sessions said it “restores sound principles of asylum and long-standing principles of immigration law.”
Actually, this move by the Trump administration further guts the right to asylum. It goes against both the spirit and letter of the law governing humanitarian relief. It marks the latest attempt by the administration to curtail legal entry into this country. Sadly, those who will suffer as a result are among the most vulnerable people in the world.
The right of asylum is established under both U.S. and international law. To be eligible for asylum, a person must show that they suffered persecution in their home country because of their race, religion, nationality, political views or membership in a particular social group, and that they would be in danger if they returned home. Generally, an asylum seeker must go through a background check and pass a series of interviews before they learn if their application will be granted or denied.
The president and his attorney general have made it clear that they have a low opinion of this process. Trump has tweeted that migrants should be sent back “with no judges or court cases.”
We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents...— Donald J. Trump (@realDonaldTrump) June 24, 2018
Their rhetoric is troubling, as it amounts to a no-win situation for migrants. If people arrive at our southern border ill-equipped to navigate our complex immigration system, Sessions’ new policy means that they are likely to be swiftly turned away. Yet migrants who have some understanding of their rights are, according to Sessions, fraudulently “gaming” the system.
There is a case to be made that the Trump administration itself is “gaming” the asylum process – because Sessions is imposing his hardline immigration views on a system that was designed to be compassionate and fair. Under his guidance, border officials are to weigh whether a person entered the country illegally in considering their asylum claim. In fact, it is legal to come to the U.S. without papers and ask for asylum.
Before a California judge issued an injunction blocking family separations at the border, administration officials repeatedly said that asylum seekers who didn’t want to be separated from their children should present themselves at a port of entry, which they called the legal way to ask for asylum. Not true. Section 208 of the Immigration and Nationality Act (INA) allows asylum applicants to apply “whether or not at a designated point of arrival.” And some border officials have been telling asylum seekers at ports of entry to come back later; one family was turned away nine times. This is another violation of the INA, which mandates that people who request asylum be immediately processed – not turned away and left to languish on border bridges.
For migrants fleeing horrific violence in Central America, the asylum process is extremely difficult. After completing an often-harrowing journey to the U.S. border, migrants then have to face a professional prosecutor and an immigration judge. Many do so without lawyers, and most asylum claims are not successful. According to data compiled by researchers at Syracuse University, the 2017 denial rate for asylum claims was 61.8 percent, and denial rates were higher for people from Central America: 88 percent – nearly nine of every 10 people from Mexico; 79.2 percent for those from El Salvador; 78.1 percent for Honduras; and 74.7 percent for Guatemala. Now the Trump administration is making it even harder for people to make asylum claims, by allowing border agents to turn away people before they ever step foot on U.S. soil Not only does this interfere with migrants’ potential due process rights, it could result in thousands of people being sent back to face mortal danger.
For all the controversy surrounding the asylum issue, each year the U.S. admits a relatively low number of people in this category. In fiscal year 2016, the total number of individuals granted asylum by the U.S. was about 20,000 – roughly the size of a small town.
Yes, we are a nation of laws and these laws should be respected. Trump’s “zero tolerance” policy, which refers all unauthorized border crossers for criminal prosecution, is nonetheless problematic because it makes criminals of people who are exercising their right to asylum. And despite some misleading talk from conservatives that migrants should stay home and apply for asylum at a U.S. consulate or embassy abroad, that is not an option. Asylum law requires that an applicant be physically present in the U.S.
The Trump administration’s new restrictions on asylum are legally questionable, inhumane and wrong. The U.S. should not be turning its back on desperate people seeking humanitarian relief.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.