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Albany Legal Blog

Trump’s Immigration Agenda: Asylum

On Behalf of | May 6, 2019 | Immigration


Now that the midterm elections have come and gone, and we’re fully two years into the Trump presidency, it seems like an appropriate time to take a look at various pieces of the President’s immigration “agenda”, if you can call it that.

For far longer than I care to remember, I have hoped that our immigration system would be reformed. Immigration “reform” has seen various fits and starts over the past 30 or so years, whether in Congress or the Executive Branch, but nary have these two branches of government, or Congress between its two houses, been able to get on the same page for meaningful reform.

As a result, we’ve seen various changes to our immigration system by means of executive action or regulatory changes.

President Trump relies on executive action seemingly weekly, admittedly as did his predecessors in the Oval Office as well. According to an American Immigration Council study published in 2014, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. That number seems to be growing exponentially during the current administration. President Trump is using this authority, although in his case, he’s using executive authority to eviscerate the asylum process.

For example, in November 2018, the President issued a proclamation that, in combination with a rule promulgated by the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”), bars individuals from seeking asylum if they entered the United States from Mexico between official ports of entry. This proclamation is entirely inconsistent with current law that states that all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Perhaps not all persons who apply for asylum are eligible for that relief. That’s a different issue. But law says that everyone deserves a full and fair opportunity to pursue it. This proclamation is currently subject to legal challenge.

Before that, in April 2018, the President, through his then Attorney General, implemented a “zero tolerance policy”, which resulted in, and continues to result in, the widespread separation of parents and children arriving together at the U.S. southern border between ports of entry. The President’s policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including those seeking asylum in the United States.

Because of the public outcry associated with this policy, in June 2018, the President issued an Executive Order addressing the family separation crisis that he created, by expanding the use of family detention. Recent news reports have suggested that the Trump Administration did not then have enough information to reconnect parents with their kids, except for a very few.

More recently, in January 2019, DHS announced its new “Remain in Mexico” policy, which would force individuals arriving at the U.S. southern border who are fleeing violence and persecution in their own countries to remain in Mexico pending their asylum hearing before a U.S. immigration judge. This new policy dramatically changes the well-established process for applying for asylum at the U.S. southern border. It also makes it substantially more difficult for asylum seekers to receive a fair and meaningful review of their claims as required under U.S. law.

And finally, and most recently, in April 2019, the President issued a memorandum ordering further changes to U.S. asylum policies; most notably, a requirement that asylum seekers actually pay a fee just to apply for protection. This proposed change would be the first time in our history that individuals seeking asylum would have to pay to apply for asylum. Asylum seekers are fleeing violence and persecution in their home countries. They arrive at our border with little more than the clothes on their backs and whatever they might be able to carry in their two hands. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, thus leaving them unable to seek the very protection that U.S. law is supposed to afford them.

The President continues to use whatever means he can to gut our asylum protections, and in his view, to deter the flow of refugees to our southern border. The last two years of executive actions and policy changes has significantly impacted families who are doing nothing more than seeking safe passage under long-standing U.S. asylum protections. It needs to stop.

Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to those who seek protection under U.S. asylum law, the only way meaningful change will occur is at the ballot box. That’s less than two (long) years away. We now need to do our part.


[1]The regulations would also require applicants to pay a fee to apply for work authorization for the first time. Currently, asylum applicants can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.