Ending asylum protection won’t do anything to stop illegal border crossings

The Donald Trump administration just issued a joint interim final rule that adds a new bar to eligibility for asylum for an alien who —

“[E]nters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.”

The bar is subject to three exceptions:

1. The alien applied for protection from persecution or torture in at least one of the countries he passed through en route to the United States, and his application was denied;
2. He can establish that he is a “victim of a severe form of trafficking in persons;” or,
3. He only traveled through countries that are not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture.

The objective of the new rule is to decrease the number of people crossing the border for economic reasons or to exploit the asylum system as a way to enter the United States. It won’t do either.

First, asylum is not the only relief available to aliens who fear persecution — there’s also “withholding of deportation.”

The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees, which 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.”

The United States satisfies this treaty obligation with Section 241(b)(3) of the Immigration and Nationality Act, which prohibits the removal of an alien to a country where his life or freedom would be threatened on those accounts.

The burden of proof for asylum and for withholding of deportation are identical, with one exception — an asylum applicant only has to establish a well-founded fear of persecution, but withholding requires the applicant to establish that persecution is more likely than not.

There’s another, more important difference. The only benefit withholding offers is a temporary bar to deporting the alien to the country where he would face the likelihood of persecution. It does not lead to permanent resident status, and it does not include derivative benefits for the alien’s family members.

That is a very significant difference, it’s unlikely to matter much or to reduce the number of aliens crossing the border illegally to claim asylum. 

Why?

Because their claims will still have to be processed to determine whether one of the exceptions to the new asylum bar applies, and if not, whether they can establish eligibility for withholding of deportation — and if they establish entitlement to a hearing before an immigration judge, the processing time is extended further. There’s currently a backlog in the immigration courts so bad that the average wait for a hearing is two-and-a-half years.

Trump won’t be able to detain them while their claims are being processed unless the Democrats provide the funding needed to greatly increase detention facilities, which is hardly likely.

Moreover, he wouldn’t be able to detain all of them even if he had the necessary facilities. The Flores Settlement Agreement prohibits the detention of children — and through policy, the adult aliens traveling with them — for more than 20 days.

If the Democrats continue to refuse to invalidate Flores with legislation, Trump is going to have to take it to the Supreme Court.

In other words, the Democrats will still be able to keep the border open.

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.  Follow him on Twitter @NolanR1