On June 15, the Trump administration proposed new federal regulations that would, as a practical matter, end asylum in the United States for victims of persecution in other countries. Human rights groups will protest during the 30-day comment period required by law, but there is no doubt that the administration will put the new regulations into effect.
In 1980, Congress recalled the shameful period before World War II when the United States turned away Jews and others desperately seeking protection in America. It passed the sweeping Refugee Act, authorizing asylum for anyone in the United States or at its borders who could show a well-founded fear of persecution in their own country on account of race, religion, nationality, political opinion or membership in a particular social group.
During the last 40 years, successive administrations then built a robust structure through which asylum officers and immigration judges adjudicated applications for asylum, granting about a third of them and allowing tens of thousands of people to enjoy safety in the United States. Many of the successful applicants were victims of prolonged imprisonment, beatings or torture, who had dared to oppose oppressive regimes. Some of the others were gay men and women who faced imprisonment or even death because of their sexual orientation; women threatened with genital cutting because of tribal customs; Christian ministers tortured because they proselytized; and women threatened with death by Central American gang members unless they agreed to become sex slaves for the gang.
Since 2018, the Trump administration has been chipping away at asylum through new regulations and decisions of Attorneys General Jeff Sessions, Matthew Whittaker and Bill Barr. Sessions’ A-B- decision, for example, made it exceedingly difficult for victims of domestic violence to win asylum. In 2019, a regulation under Barr’s oversight bars asylum for anyone who crosses the southern border without having sought asylum in Mexico, which has a barely-functioning asylum adjudication system. Most recently, the administration has been expelling all migrants at its southern border without any adjudication at all, ignoring the requirements of the Refugee Act. Many of the administration’s new restrictions, including the bar on those arriving via Mexico without having sought asylum there, were enjoined by federal courts, but the administration became increasingly emboldened as those injunctions were stayed by 5-4 decisions of the Supreme Court.
The pending regulation, obviously an attempt to make it difficult for a potential Democratic administration to reverse anti-asylum policies next year, is a belt-and-suspenders attack on every aspect of the plan that Congress enacted. Among other things, it provides that death threats from a regime’s officials should no longer be considered to be persecution, that women can’t win asylum even if persecution of them is ubiquitous and that former gang members who face death for having left the gang cannot qualify as members of a “social group.”
It allows officials to dismiss asylum applications, without a hearing, if the written application form doesn’t show on its face that the claim is legally meritorious — even though many applicants fill out the form without legal assistance and can’t know exactly what kinds of claims the law allows. It codifies Sessions’ ban on asylum based on domestic violence. It makes evidence of societal factors, such as the prevalence of a culture of machismo that experts believe is the underlying cause of violence against girls and women, inadmissible in immigration court. Also, it strongly encourages officers to use “discretion” to deny asylum to applicants who transited through two other countries en route to the U.S. or who spent more than 14 days in one of them. It even provides that torture isn’t torture when committed by a “rogue” official — an ultimate irony in the month that the police officer who killed George Floyd was charged with murder for acts that violated Minneapolis’s policies for police conduct.
The new regulation is a slap in the face of the 1980 Congress, but it could be swept away by Congress in 2021. The obvious champion for its demise is Sen. Patrick Leahy (D-Vt.), who for years has pressed for his Refugee Protection Act. Leahy’s bill, which has also been introduced in the House by Rep. Zoe Lofgren (D-Calif.), repeals some restrictions in the law that are relatively minor compared with what Trump has done, such as the bar on asylum for those who, because of ignorance of the law, waited more than a year after entering the United States to apply for it.
The 2021 version should systematically reverse all of the Trump administration’s impediments to asylum and restore the system that Congress provided, intending that the United States would never again be complicit in the overseas murders of people who have sought safety in America.
Philip G. Schrag is a law professor at Georgetown University and the author, most recently, of “Baby Jails: The Fight to End the Incarceration of Refugee Children in America.”