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Trump can refuse to accept asylum applications

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Many people mistakenly believe that asylum seekers have a right to apply for asylum in the United States.

The first paragraph in the Immigration and Nationality Act’s (INA) asylum provisions provides that aliens physically present in the United States “may” apply for asylum.

But the second paragraph provides the following three exceptions, and asylum may be denied on the basis of disqualifying conduct, such as having been convicted of a particularly serious crime.

  • Safe third country. – Asylum is not available to an alien who can be sent pursuant to a bilateral or multilateral agreement to a country where he will not be persecuted, other than the country of the alien’s nationality; and where he will have access to a full and fair procedure for determining an asylum claim or equivalent protection. An exception is permitted when it is in the public interest for the alien to receive asylum in the United States.
  • Time limit. – An alien has to file his asylum application within one year after the date of his arrival in the United States unless he can show a change in circumstances.
  • Previous asylum applications. – Asylum is not available to an alien who has filed a previous application that was denied, unless he can show a change in circumstances.

The third paragraph says no court shall have jurisdiction to review any determination on the exceptions.{mosads}

Asylum “may” be granted to an eligible alien who has established a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

An asylum grant does not convey a right to remain permanently in the United States. It can be terminated if conditions in his country change and it is safe for him to return, and asylees also can be removed to a safe third country.

But an alien who has been physically present in the United States for a year since being granted asylum can apply for adjustment of status to that of a lawful permanent resident.

Trump is considering a wide range of administrative, legal and legislative options to address what he calls, “the Democrat-created crisis of mass illegal immigration.”

The United States currently has a safe third country agreement with Canada, and Trump is being urged by GOP leaders to establish one with Mexico too.  If he does this, America will not have to accept asylum applications from aliens coming here from Mexico.

Mexico already is encouraging the migrants in the caravan to apply for asylum in Mexico instead of in the United States. It has offered them temporary identification papers and jobs if they register for asylum in Mexico.

If Trump establishes third country agreements with a substantial number of countries, it could greatly reduce the number of asylum applications the United States has to consider.

Trump also is considering an executive order to keep asylum seekers from Central America out of the United States. Presumably, it would be based on section 212(f) of the INA, which reads as follows:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.

The Supreme Court upheld Trump’s travel ban order on the basis of this provision, but an order suspending the entry of asylum seekers from Central America would be challenged in the same lower courts that flouted precedent to reject his travel ban.

According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order.

And this time, the courts would have an objective basis available to them.

The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Trump also can arrange for persecution claims to be screened outside of the United States.

President Barack Obama did this with his Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.

Moreover, the United Nations Refugee Agency, UNHCR, might be willing to process some of the Central American asylum seekers outside of the United States.

The only certainty is that Trump is preparing to take drastic action.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

Tags Asylum in the United States Asylum seeker Barack Obama Illegal immigration to the United States Immigration to the United States Right of asylum

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