Trump’s asylum rule violates both domestic and international law


August 12, 2019

Editor’s note: CHN Intern Rebekah Kim Jong is a rising senior at Liberty University. Her major is International Relations, and her minors are Chinese and Business.

Update: While this blog post was in production, a U.S. district judge issued an injunction blocking the Trump Administration from enforcing a rule that barred individuals who enter the U.S. between ports of entry from applying for asylum. Although the injunction does not address the Administration’s latest “safe third country” proposal described in this blog post, the court’s action does give immigrant advocates hope that its many punitive attacks on immigrants will not be allowed to stand going forward.

Thousands of asylum seekers flee to the United States. Often victims of serious violent crimes, they come in pursuit of safety and a better life. But if the Trump Administration has its way, they may reach a dead end.

Administration officials recently announced an interim final rule; If asylum seekers fail to apply for protection while in a safe third country first, the new rule will deny asylum to those who enter, or attempt to enter, the U.S through the southern border. Like the Migration Protection Protocols (MPP) the U.S implemented with Mexico, which requires that asylum seekers stay in Mexico while they wait for approval of entry, this rule is another way to keep asylum seekers out of the U.S.

The Department of Homeland Security (DHS) and the Department of Justice (DOJ) believe this will deter those who are “misusing the asylum system.” However, this rule will also place thousands of people in peril.

Sen. Dianne Feinstein (D-CA) stated, “These families are fleeing some of the most violent, dangerous countries in the world such as El Salvador, Guatemala and Honduras.” Now for a large portion of incoming asylum seekers, they are being forced to wait in Mexico, where there were 33,500 homicides reported in 2018. Even President Andrés Manuel López Obrador admits that the country is “among the most unsafe countries in the world.”

In late July, the United States and Guatemala entered into what is known as a safe third country agreement. The agreement, which is primarily aimed at preventing migrants from El Salvador and Honduras from reaching the United States, requires those who travel through Guatemala to seek asylum there first.

But Guatemala is hardly safe. Due to Guatemala’s gang violence, cartel activity, and civil instability, the country regularly ranks high on lists of the world’s most dangerous nations. In a travel advisory for Guatemala, the U.S. State Department notes that armed robbery and murder are “common,” and that violent street crime, extortion, and narcotics trafficking are “widespread.”

Rodrigo S (not his real name), 21, is an asylum seeker who fled El Salvador. During an immigration court proceeding, he discussed being robbed at knifepoint and stabbed in the back. When he went to the police, the Mexican officers denied him assistance because he was not a Mexican citizen. Although he is recovering physically, he said he is afraid of being sent back. This is only one anecdote out of numerous accounts of mistreatment that asylum seekers have experienced while in Mexico.

The horrendous living conditions and mistreatment of children in migrant facilities, in addition to the Trump Administration’s asylum rule, are in violation of international and U.S. law.

the United Nations 1951 Convention and 1967 Protocols were later integrated into U.S law through the Refugee Act of 1980. Thus, U.S law states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…) irrespective of such alien’s status, may apply for asylum.”

Under the Flores Settlement Agreement (Flores v. Reno, 1997), the government is required to prioritize the welfare of children in custody, and is expected to unite children with parents, family members or sponsors speedily. But we know through numerous reports that detail the cruel and lengthy separation of families, as well as a lack of adequate care for children in U.S migrant facilities, that the agreement is being violated.

Thankfully, the asylum rule is facing a vigorous legal challenge in the form of an ACLU lawsuit, which argues that it violates federal immigration law and regulation.

“This is the Trump Administration’s most extreme run at an asylum ban yet,” said ACLU attorney Lee Gelernt. “It clearly violates domestic and international law and cannot stand.”

In the lawsuit, filed in the Northern District of California, the ACLU asserted that the new regulation “is part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system.”

The ACLU contends that the rule violates federal asylum law, which makes protections available to migrants whether or not they arrive at a port of entry. In addition, the ACLU is arguing that the Trump Administration violated regulatory guidelines when it issued the sweeping change immediately and without going through a thorough public process that would allow for a public comment period.

This violation of both domestic and international law is disturbing. And turning our back when so many men, women, and children need our help is outrageous.

As researcher and academician Brene Brown put it, “If your response is, ‘The parent should not have brought their children here illegally,’ know this: I pray to God that you never have to flee violence or poverty or persecution with your children. And, if the day comes that you must and your babies are forcibly removed from your arms, I will fight for you too.”