Trump Administration Enacts Rule Gutting Protection for Refugees and Asylum Seekers

WASHINGTON – In the waning days of the current administration, the Trump U.S. Departments of Homeland Security and Justice have rammed through a sweeping final rule, set to go into effect on January 11, 2021, that guts what remains of protection for refugees seeking asylum in the United States. This rule is a clear violation of the Immigration and Nationality Act, the intent of Congress, and the treaty obligations of the United States.

“The rule is in flagrant and egregious conflict with laws enacted by the U.S. Congress; it impermissibly attempts to rewrite and erase laws passed by Congress to provide asylum to refugees who face persecution,” said Eleanor Acer, senior director of refugee protection at Human Rights First. “The rule will deny asylum to refugees who qualify for it under U.S. law and treaties and cause the United States to send families, children and adults seeking refuge back to deadly dangers. The rule is yet another Trump administration policy that will separate refugee families to punish them for seeking U.S. asylum.  The rule will prevent refugees from reuniting with their children and spouses, blocking them from bringing them to safety in the United States as derivative asylees even when refugees prove that they qualify for protection from return to persecution – presenting them with the impossible choice of permanent separation from their children and spouse, or returning to a country where their lives and freedom are at risk.”

Under the rule, the Trump administration is likely to, among many other harmful actions:

• Deny asylum to refugees who changed planes in or transited through 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 gender-based violence, 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 protection to refugees who have been tortured by a police officer or member of the military or others acting on behalf of a government, if an adjudicator deems the officer to be a “public official who is not acting under color of law,” in contravention of circuit court precedents recognizing that governments — some of which use shadowy forces to maintain deniability in going after their opponents — may also turn a blind eye to officials who torture people for their own purposes;
• 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 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 deny asylum to people who managed to escape threats unless those threats can meet a new and unrealistically high standard that would deny protection to many who fled and faced very real dangers;

• 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 pass fear screenings and have a chance to apply 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, such as adjustment of status (a September 23 proposed rule would give these asylum-seekers only 15 days to file asylum applications after their first immigration court hearing);
• Create new grounds for declaring asylum applications “frivolous,” an extreme sanction that can ban someone from any other immigration benefit for life.

Human Rights First and nearly 90,000 individuals and organizations submitted public comments on the proposed rules. Remarkably, the Departments of Homeland Security and Justice reviewed these tens of thousands of comments, finalizing these regulations, which span 419 pages. The final rules are substantially the same as the notice of proposed rulemaking making only what the Departments describe as “non-substantive” changes and correcting “inadvertent” errors in the proposed rule’s text.

“The new rule will have life and death consequences for refugees and their families,” said Acer. “It turns U.S. asylum adjudications into a Kafkaesque system for denying asylum to the very refugees that Congress created laws to protect. The rule also imposes impossible choices on asylum adjudicators by attempting to force them to violate laws enacted by Congress and turn refugees back to persecution.”

Human Rights First’s comments on the proposed rule are available here. Human Rights First provides pro bono legal representation for refugees seeking asylum in the United States, in partnership with volunteer lawyers at many of the nation’s leading law firms. Our pro bono refugee clients have fled persecution in Cameroon, China, Cuba, El Salvador, Guatemala, Eritrea, Honduras, Iraq, Nicaragua, Syria, Venezuela and other countries where their lives and freedom are at risk.