New Trump immigration regulations would devastate refuge pathways

New Trump immigration regulations would devastate refuge pathways
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After three and a half years of methodically chipping away at the rights and dignity of asylum seekers, the Trump administration has achieved its coup de grâce. Last week, the Departments of Justice and Homeland Security issued draft regulations that could effectively eradicate asylum law as we know it. 

The 161-paged document impacts nearly 900,000 individuals with pending asylum applications and countless others who may seek protection in the United States from persecution or torture they face in their home countries. The regulations systematically dismantle nearly every aspect of our nation’s asylum laws, including:

  • limiting who may enter the United States in order to apply for protection and the ability of applicants to make their case before an immigration judge;
  • narrowly redefining the contours of a viable “political opinion”; 
  • declaring de facto ineligible a broad category of claims, including those based on gender and so-called “private criminal acts” such as domestic and gang violence;
  • requiring applicants to suffer extreme and severe levels of persecution; and
  • making the path to asylum significantly more difficult for those who do not have the resources to secure a visa and book a direct flight to the United States.

As a law professor, part of my job is to construct hypothetical scenarios that help students analyze the law. These regulations have me stumped. I am hard-pressed to devise a realistic fact pattern describing an individual who would qualify for asylum if these regulations were to come into force. And this exercise is far from academic; I cannot think of a single client I have represented in nearly 15 years as an immigration attorney who would meet these stringent new requirements. 

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But more broadly, these regulations strike at the heart of the American Ideal. When Congress enacted the Refugee Act in 1980, it highlighted “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands. The Board of Immigration Appeals has also noted that our asylum laws reflect “our national commitment to human rights and humanitarian concerns.” 

From the outset, U.S. asylum law was intended to be an expansive and rights-protective doctrine. But the Trump administration has used every tool at its disposal (including some that have proven to be beyond its lawful reach) to curtail access and restrict those rights: family separation, the “metering” necessitated by its “Remain in Mexico” policy, Attorney Generals’ overruling of firmly-established legal precedents, and the deplorable treatment faced by asylum seekers in overcrowded, unhygienic, and COVID-19 infested detention centers. 

Last week’s sweeping restrictions are both the summation and the culmination of those relentless efforts. The Trump administration has now fully abrogated both its legal and moral responsibilities to those seeking refuge in the United States. 

It is incumbent upon all Americans to speak out against these cruel, inhumane, and unlawful policy changes. The proposed regulations were published in the Federal Register yesterday. Legal challenges will undoubtedly follow, but a public comment period will also be in place for 30 days — until July 15, 2020 — before the regulations go into effect. The administration must consider all comments received before issuing a final regulation. 

Anyone who believes that the United States should still be a beacon for those who are fleeing persecution and torture must speak out against them. 

Natalie Nanasi is a professor at SMU Dedman School of Law in Dallas where she is director of the Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women. She supervises students in their representation of immigrant survivors of gender-based and teaches a course through which students provide legal assistance to migrants at the Karnes Family Immigration Detention Center. She currently serves on the board of the Human Rights Initiative of North Texas.