Human Rights First Condemns Rule that Seeks to Re-Write Refugee Laws, Eliminate Asylum

WASHINGTON – The U.S. Departments of Homeland Security and Justice have proposed a new rule, slated to be issued on Monday, June 15, which would gut what remains of protection for refugees seeking asylum at the U.S. border with Mexico and create a near-total elimination of asylum for other applicants in what legal experts see as a clear violation of the Immigration and Nationality Act, the intent of Congress, and the treaty obligations of the United States.

“The proposed rule attempts to rewrite laws passed by Congress, blatantly violates U.S. treaty obligations and turns refugees with well-founded fears of persecution back to danger,” said Eleanor Acer of Human Rights First. “In the face of multiple legal challenges, the Trump administration is basically throwing the kitchen sink at U.S. asylum laws in an attempt to implement its illegal policies in multiple ways.”

Under the proposed rule, the Trump administration would, among many other harmful actions, have the United States:

• Deny asylum to refugees who changed planes in another country on their way to the United States simply because they did not apply for asylum en route, even in cases where they know they would not have been safe or protected in that country or that country lacked a functioning asylum system
• Deny asylum to refugees who improperly entered the United States despite the fact that a U.S. federal court has already ruled that an asylum ban on such grounds is inconsistent with U.S. law, and even though Article 31 of the 1951 Refugee Convention specifically prohibits penalties for such entry

• Deny asylum to a woman who is harmed for resisting men who claim they can rape her or beat her at will, on the grounds that feminism is not political opinion (claims based on resistance to forced abortion would, however, continue to be recognized)
• Deny asylum to LGBTQ refugees who pass through transit countries, seek protection due to persecution based on gender, or when fleeing persecution based on laws criminalizing same-sex relationships if an adjudicator deems the laws infrequently enforced

• Deny asylum to children who flee to the United States to escape forced conscription by terrorist or other non-governmental armed groups
• Deny asylum to refugees persecuted for reporting political activity or collaborating with law enforcement

• Deny protection to refugees who have been tortured by a police officer or member of the military, if an adjudicator deems the officer to be a “rogue official”
• Allow an immigration judge to deny asylum without a hearing on the grounds that the claim did not appear to meet the new and highly controversial legal requirements imposed by this proposed regulation, or other restrictions already adopted by the Trump administration
• Bar refugees from asylum based on firm resettlement even though they were not actually offered permanent residence in another country if an adjudicator decides they somehow “could have” sought some status in that country, regardless of their safety in or ties to that country
• Redefine persecution to deny asylum to refugees even though they have been repeatedly detained for their political or religious views or other protected characteristic if an adjudicator deems those detentions “brief” and to rewrite court precedents on when threats constitute persecution

• Redefine “political opinion” in ways so poorly written as to be incomprehensible, guaranteeing the denial of many claims eligible for protection under the Refugee Convention and Protocol, the Immigration and Nationality Act, and existing court precedent, as well as years of unnecessary litigation over what exactly this regulation says

• Bar refugees from even applying for asylum by increasing the complexity of credible fear screenings, applying the administration’s many new bars to asylum at the preliminary screening stage without sufficient opportunity to prepare or present evidence, and treating a terrified or confused asylum-seeker’s failure to indicate whether or not he or she wants an immigration judge to review the credible fear denial as a refusal of such review

• Make it harder for asylum-seekers in expedited removal proceedings to gain the right to apply even for withholding of removal when they have been barred from asylum by this administration’s existing illegal changes to the asylum process

• Block asylum seekers from regular immigration court hearings in an attempt to deny them other forms of relief for which they may be eligible
• Create new grounds for declaring asylum applications “frivolous,” an extreme sanction that can ban someone from any other immigration relief for life.

“The proposed rule seeks to codify into regulation a Kafkaesque version of asylum that denies asylum to refugees who can prove they have well-founded fears of persecution,” said Acer. “The rule would make an already exceedingly difficult and complex asylum process completely impossible for many refugees, which is precisely the goal.”