Wednesday, July 15, 2020

Guest Post: Undoing Asylum by Raquel Aldana


Since taking office, the Trump administration has taken numerous steps toward dismantling U.S. asylum and refugee legal protections that had taken more than half a century to build. The United States joined the international refugee regime in 1968 when it acceded to the 1967 Protocol,[1] thereby taking on the UN Refugee Convention's[2] obligations as well. Then, after years of study and advocacy, in a watershed historical moment, the United States adopted the Refugee Act of 1980 and solidified into law our moral obligations not to turn our back on the most vulnerable migrants who must flee persecution at home.[3] For decades that followed, through sustained litigation in the courts and through the adoption of regulations that largely attempted to track these legal advancements in the courts, the Refugee Act was interpreted in response to significant new patterns and/or our deeper understanding of persecution, including gender violence or unfettered violence waged by non-state actors with impunity.

Until recently, Trump efforts to dismantle asylum protections, largely in response to Central Americans arriving at the U.S. border, have been through informal agency policies and practices and through questionable bilateral agreements with weaker nations.[4] Already, even prior to COVID-19, these efforts had been extremely successful in barring nearly all who arrived at the U.S. Southern border seeking protection.[5] But the costs, in addition to the terrible human toll, have included costly litigation that has delayed implementation and yielded both victories and losses to Trump’s plans.[6] An important loss to President Trump came in July 2020 when Federal District Court Judge U.S. District Judge Timothy J. Kelly of Washington, D.C., a Trump appointee, struck down an agency policy aimed at blocking Central American migration by requiring asylum seekers from Honduras, El Salvador, Guatemala and elsewhere first to apply for asylum in countries they pass through on the way to the United States, particularly Mexico or Guatemala.[7] Importantly, Judge Kelly held that the administration “unlawfully promulgated” the rule, failing to show it was in the public interest to stealthily implement the change and bypass the Administrative Procedure Act.

By July 2020, COVID-19 had solidified the near total shut down of the U.S. Southern border to asylum seekers.[8] Now, President Trump seeks to seal the border permanently to asylum seekers and also potentially to those already in the U.S. adjudicating their claims by making permanent many of the informal policies and practices through regulation. On June 15, 2020, the Department of Homeland Security and the Executive Office for Immigration Review proposed a regulation titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Interview.[9] If successfully adopted, this highly complex and hyper technical 43- page rule, will give the Trump administration the ammunition it needs to potentially shield off much of the successful litigation strategy that has allowed advocates to stall the demise of asylum. Unfortunately, the administration provided only to days for public comments, a date that expired July 15, 2020. Thankfully, many amazing lawyers, organization and other advocates mobilized and collaborated generously to weigh in against the proposed rule, knowing that doing so could be critical to the rule’s defeat, whether now or later if the rule passes and is challenge in the courts. We share one of thousands of public comments in opposition to the rule here. Download Public Comment on Asylum Rule Aldana et al  We provide no less than fourteen reasons for why the agencies must reject this but two broad principles guided our compass:

  1. “We view the proposed rule as defying the rule of law by seeking to undo not only Congressional intent when it enacted the Refugee Act of 1980, but also carefully developed interpretation of the law through judicial precedent and rule-making… this rule…seeks to undo in merely three years…decades-long efforts that tried, through legislation and the coordination of the three branches of government, to honor our moral and legal obligations not to turn our backs once more to the most vulnerable immigrants who desperately seek our protection from persecution.”
  2. “This is not who we are as a nation or who we want to be. We are better than this.”  

Let’s hope the agencies hear us.


[1]  UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267.

[2]  UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, 137.

[3]  Maurice A. Roberts, The U.S. and Refugees: The Refugee Act of 1980,  A Journal of Opinion 12, no. 1/2 (1982).

[4]  See generally Muzaffar Chishti & Jessica Bolter, Interlocking Set of Trump Administration Policies at the U.S. at the U.S.-Mexico Border Bars Virtually All from Asylum, Migration Policy Institute, Feb. 27, 2020. 

[5]  Id.

[6]  See, e.g., Muzaffar Chishti & Jessica Bolter, Supreme Court Asylum Ruling Latest Sign Judiciary is Not the Break on the Trump Administration that Immigration-Rights Activists Sought, Migration Policy Institute, Sept. 25, 2019.

[7]  Spencer S. Hsu, Federal Judge Strikes Down Trump Asylum Rule Targeting Central Americans, Wash. Post, July 1, 2020.

[8]  Id. (reporting that from March to May only two asylum seekers were allowed to enter the United States).

[9]  The full text of the proposed rule is available here.



UPDATE (July 16):  Click here  (care of LindsayHarris) for more comments on the proposed asylum regulations.


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