Updated: Trump Admin. Unveils New Asylum Restrictions to Stem Border Crisis

The Trump Administration is moving forward with a plan to make it more difficult for migrants traveling through Central America to take advantage of the present loopholes in the United States immigration system to seek and obtain asylum after illegally crossing the southern border. The Department of Homeland Security in conjunction with the Department of Justice released a new rule today under which migrants who enter the United States at the southern border are ineligible for asylum unless they sought protection in one of the countries they traveled through on their way to the United States. This new rule is a strong, and necessary first step towards stemming the flow of migrants from Central America into the U.S. and is expected to take effect tomorrow.

According to the new rule, to remain eligible for asylum in the United States, migrants must first seek protection in a country they traverse on their way to the southern border, such as Mexico, El Salvador, or Guatemala. If this requirement is not completed, the migrant can be turned away at the border. As reported by the Washington Examiner, the measure comes as the Trump administration confronts a flood of migrants crossing the southern border in what President Trump has called a humanitarian and security crisis. Democrats have blamed the president for implementing policies that have led to overcrowding and unsafe conditions at detention centers, despite the fact that a stronger argument can be made that Congress’s lack of definitive action overhaul the United States’ immigration system is more to blame.

This is not the first action taken by President Trump’s Administration designed to deter migrants from making the journey to the U.S.-Mexico border; however, the Trump Administration has faced a series of setbacks in the federal court system. Attorney General William Barr said in a statement that the Trump Administration is acting within the authority assigned to it by Congress to restrict asylum eligibility.

This Rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum. The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border. This Rule will decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States—while ensuring that no one is removed from the United States who is more likely than not to be tortured or persecuted on account of a protected ground.

Despite Attorney General Barr’s clear-cut argument for the legality of the new rule, this latest measure will likely be challenged in federal court. The Third Country Rule outlines three limited exceptions to the rule, according to a statement released by the Department of Justice they are:

(1) an alien who demonstrates that he or she applied for protection from persecution or torture in at least one of the countries through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country;

(2) an alien who demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11; or,

(3) an alien who has transited en route to the United States through only a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Department of Homeland Security Acting Secretary Kevin McAleenan issued the following statement in connection with the new rule and the statement released by Attorney General William Barr:

While the recent supplemental funding was absolutely vital to helping confront the crisis, the truth is that it will not be enough without targeted changes to the legal framework of our immigration system. Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey. Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits.

According to the press release from the Department of Justice, the hard fact of the matter is the United States has experienced an unprecedented increase in the number of aliens encountered along or near the southern border with Mexico. This increase corresponds with a sharp rise in the number, and percentage, of aliens claiming a credible fear of persecution when apprehended by DHS. The number of cases referred to DOJ for proceedings before an immigration judge has also risen exponentially, more than tripling between 2013 and 2018. These numbers are projected to continue to increase throughout the remainder of Fiscal Year 2019 and beyond.

The release continues:

Only a small minority of these individuals, however, are ultimately granted asylum. The large number of meritless asylum claims places an extraordinary strain on the nation’s immigration system, undermines many of the humanitarian purposes of asylum, has exacerbated the humanitarian crisis of human smuggling, and adversely impacts the United States’ ongoing diplomatic negotiations with foreign countries. This rule mitigates the strain on the country’s immigration system by more efficiently identifying aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.

This new rule is an excellent step in the right direction for three crucial purposes, 1. ending asylum abuse, 2. restoring order to the United States immigration system, 3. stopping the surge of illegal immigration currently underway at the southern border. The U.S. asylum system has been used as a loophole by aliens to gain entry to the United States and remain here indefinitely, despite their claims often being meritless. To worsen this fact, approximately 90% of asylum seekers skip their immigration court hearing, disappear into the United States, and are not seen from again; in addition, the median asylum grant rate across all immigration courts is around 11%, this is compared to the 90% of migrants who pass their initial credible fear test at the border.

The rule will also help give immigration courts the time they need to process the unsustainable backlog of more than 900,000 cases. Loopholes like the abuse of our asylum system act as a magnet that draws more and more aliens with meritless claims to flood across the southern border. Other responses, when made, to the humanitarian and security crisis at the southern border, have been completely overwhelmed by the surge in illegal immigration; Border Patrol has already apprehended 688,375 aliens this fiscal year, 73% more than were apprehended in all of FY 2018. The DOJ and DHS Third Country Asylum Rule is an excellent step to quell these issues and is fully supported by NumbersUSA.

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Today, The American Civil Liberties Union (ACLU) filed a lawsuit to halt the new regulation put forth by DOJ and DHS. The ACLU, representing four pro-immigration advocacy organizations, argued that President Trump’s proposed rule violates federal immigration and regulatory laws. ACLU attorney Lee Gelernt in a public statement stated:

This is the Trump Administration’s most extreme run at an asylum ban yet. It clearly violates domestic and international law, and cannot stand. is a part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system.

The lawsuit was filed in the Northern District Court of California. The civil rights group contends the rule violates federal asylum law, which makes protections available to immigrants whether or not they arrive at a port of entry. In addition, they assert the administration ran afoul of regulatory guidelines when it issued the sweeping change immediately and without a thorough public process. A federal judge in November temporarily halted a similar Trump policy that blocked migrants who cross between ports of entry from seeking asylum.

As of right now, there is no timeline available as to when this case will be heard or a decision will be made.

For a complete fact sheet on the new rule, please click here.