Trump Administration Takes Domestic and International Measures to Restrict Asylum

The Trump administration has continued its efforts to restrict immigration through a series of measures designed to limit the availability of asylum in the United States and to promote increased immigration enforcement in Mexico. In July of 2019, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) promulgated an interim final rule disqualifying asylum applicants who transited through third countries without seeking protection in those countries. This rule immediately became the subject of ongoing litigation, and, in September of 2019, the Supreme Court stayed an injunction that had been issued against its enforcement, with two justices dissenting. At the international level, over the summer and early fall of 2019, threats of economic sanctions led Guatemala, El Salvador, Honduras, and Mexico to make agreements with the United States aimed at curbing unauthorized migration into the United States. Guatemala signed an agreement with the United States under which asylum applicants in the United States who had transited through Guatemala on the way could be returned to Guatemala to pursue their asylum claims. El Salvador and Honduras also reached agreements with the United States relating to migration. Mexico committed to increasing its efforts to stem the flow of unauthorized immigration through its borders and assented to the U.S. expansion of its Migrant Protection Protocols. The Trump administration has continued pursuing other tactics to limit immigration and the availability of asylum, including through the issuance of legal decisions by Attorney General William Barr and continued litigation surrounding the construction of a border wall.

Throughout his presidency, Trump has implemented policies designed to reduce immigration to the United States.¹ In the past year, the Trump administration has intensified efforts to curb migration across the southern border by severely restricting the ability of individuals to seek asylum in the United States.² On November 9, 2018, Trump announced his intention to limit access to asylum to those who entered the United States at an official port of entry,³ and DHS and DOJ promulgated an interim final rule to this effect.⁴ Litigation contesting the rule was swift, and a preliminary injunction against its enforcement was granted on December 19, 2018.⁵

On July 16, 2019, DHS and DOJ published an interim final rule that would further limit the availability of asylum. Under this rule, individuals who transited through third countries and did not apply for asylum in those countries would be ineligible to apply for asylum in the United States.⁶ The rule states:

[A]n alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien's country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum.⁷

Although the rule would serve to deny access to asylum to migrants who had transited through and not sought protection in any third country, it did not purport to disqualify such individuals from seeking withholding of removal or relief under the Convention against Torture (CAT).⁸

The 1951 Refugee Convention does not require an asylum seeker to apply for protection in the first country transited, but rather allows a covered individual to be considered a refugee unless that person has “acquired a new nationality, and enjoys the protection of the country of his new nationality” or “is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”⁹ The Office of the United Nations High Commissioner for Refugees (UNHCR) expressed “deep[] concern[]” about the interim final rule and its compliance with international law:

UNHCR believes the rule excessively curtails the right to apply for asylum, jeopardizes the right to protection from refoulement, significantly raises the burden of proof on asylum seekers beyond the international legal standard, sharply curtails basic rights and freedoms of those who manage to meet it, and is not in line with international obligations.

…

People have been leaving parts of Central America in growing numbers in recent years for reasons ranging from extreme economic deprivation to persecution. Many of them are fleeing horrific violence by brutal gangs and are in need of international protection.¹⁰

The interim final rule faced immediate court challenge. In a complaint filed in the Northern District of California, the plaintiffs argued, among other things, that this rule was inconsistent with existing asylum laws and did not comport with international legal obligations.¹¹ The U.S. statutory provisions governing asylum state that non-citizens present in the United States “may apply for asylum” subject to specified exceptions.¹² These exceptions include two that are related to third countries, but neither of these is invoked by the interim final rule. One exception is if the individual has been “firmly resettled in another country prior to arriving to the United States”¹³ and the other is if he or she may be removed pursuant to a safe third country agreement.¹⁴ The firm resettlement bar has consistently been interpreted to require an offer or receipt of permanent status or citizenship in a third country and thereby cannot be satisfied solely by transit through another country.¹⁵ The third safe country provision permits removal where the United States has entered into an agreement with a country, other than the one of which the individual in question is a citizen, which permits removal to that country.¹⁶ In addition to the case in the Northern District of California, plaintiffs also brought a case challenging the interim final rule in the District of Columbia.¹⁷

On July 24, opposing rulings were issued by federal district courts in the two cases. While District of Columbia Judge Timothy Kelly issued a decision that would have allowed the interim rule to take effect,¹⁸ Northern District of California Judge Jon Tigar granted a preliminary nationwide injunction enjoining enforcement of the rule.¹⁹ Judge Tigar concluded that an injunction was appropriate because the rule likely conflicted with existing asylum laws, violated the procedural requirements of the Administrative Procedure Act, and was arbitrary and capricious.²⁰

The Trump administration responded to the rulings in turn, first with praise,²¹ and then with criticism,²² ultimately vowing with respect to the second decision that it would “pursue all available options to address this meritless ruling and to defend this Nation's borders.”²³ On August 16, the Ninth Circuit issued a ruling allowing the interim final rule to go into effect outside of the Ninth Circuit while litigation continues, but denying the government's motion for a stay with respect to asylum applicants within the Ninth Circuit.²⁴ On August 26, the Trump administration requested that the Supreme Court stay the preliminary injunction in order to permit the interim final rule to also go into effect within the Ninth Circuit while the litigation continues.²⁵

On September 11, the Supreme Court granted the government's motion and stayed the lower court injunction “pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such a writ is sought.”²⁶ Justice Sotomayor dissented, joined by Justice Ginsburg. She stated:

Given the [Northern District of California's] thorough analysis, and the serious questions that court raised, I do not believe the Government has carried its “especially heavy” burden [for obtaining a stay]. … The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions. It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere--without affording the public a chance to weigh in.²⁷

The Trump administration issued the July rule at a time when it was negotiating an agreement with Guatemala concerning Guatemala's designation as a safe third country for asylum seekers.²⁸ Although negotiations had appeared to break down as Guatemala's constitutional court declared that the president was unable to enter into a safe third country agreement without legislative consent,²⁹ the two countries abruptly signed an agreement on July 26³⁰ amidst threats from Trump of tariffs and other retaliatory measures.³¹ When asked how the agreement would function, Acting Secretary of Homeland Security Kevin McAleenan explained:

So this is a return to the appropriate approach with—under international law to protecting asylum seekers at the earliest possible point in their journey. If you have a Honduran family or an El Salvadorian national, instead of having them pay a smuggler, come all the way to our border to seek asylum, when they arrive in Guatemala, they're in a country that has a fair proceeding for assessing asylum claims, and that's where they should make that claim. That returns that understanding under international law.

They can make a protection claim, if they would like, in Guatemala. So if they arrive in the U.S. not having availed themselves of that opportunity, they'll be returned to Guatemala.³²

Despite the Trump administration's statements, critics have decried the agreement as an inadequate protection of migrants’ rights.³³ U.S. asylum law requires that removal pursuant to a safe third country agreement can occur only when, in the determination of the attorney general, it will not threaten the life or freedom of the individual removed “on account of race, religion, nationality, membership in a particular social group, or political opinion” but will provide “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”³⁴ UNHCR has similarly concluded that “in keeping with relevant international law standards” the safe third country should be one which will “grant the person access to a fair and efficient procedure for determination of refugee status and other international protection needs” and “accord the person standards of treatment commensurate with the 1951 [Refugee] Convention and international human rights standards, including—but not limited to—protection from refoulement.”³⁵ It is far from clear that Guatemala will meet these standards. The most recent U.S. State Department's human rights country report on Guatemala describe it as rife with human rights abuses,³⁶ and the incoming president of Guatemala, who takes office in January of 2020, stated in an interview that “‘I do not think Guatemala fulfills the requirements to be a third safe country.’”³⁷ Both U.S. and Guatemalan advocates have threatened to go to court if this agreement takes effect.³⁸

On September 20, 2019, the Trump administration announced that the United States had reached an agreement with El Salvador whose “signing reflects the partnership and commitment between both nations to discourage dangerous irregular migration across Central America towards the U.S. and to combat transnational criminal organizations, strengthen border security, and reduce human trafficking and smuggling.”³⁹ A similar agreement was reached with Honduras on September 25, and reporting indicates that both agreements have much in common with the Guatemala agreement.⁴⁰

In addition to taking measures designed to limit the availability of asylum in the United States, the Trump administration has ratcheted up pressure on Mexico to increase enforcement of its own immigration laws and inhibit migrants’ progress toward the United States. On May 30, Trump issued a statement condemning Mexico's “passive cooperation” in “allowing th[e] mass incursion” of unauthorized immigrants into the United States.⁴¹ He cited the “severe and dangerous consequences of illegal immigration” that Mexico has “allowed … to go on for many years” and called on Mexico to “step up and help solve this problem.”⁴² Trump threatened devastating economic consequences if Mexico failed to act:

[S]tarting on June 10, 2019, the United States will impose a 5 percent Tariff on all goods imported from Mexico. If the illegal migration crisis is alleviated through effective actions taken by Mexico, to be determined in our sole discretion and judgment, the Tariffs will be removed. If the crisis persists, however, the Tariffs will be raised to 10 percent on July 1, 2019. Similarly, if Mexico still has not taken action to dramatically reduce or eliminate the number of illegal aliens crossing its territory into the United States, Tariffs will be increased to 15 percent on August 1, 2019, to 20 percent on September 1, 2019, and to 25 percent on October 1, 2019. Tariffs will permanently remain at the 25 percent level unless and until Mexico substantially stops the illegal inflow of aliens coming through its territory.⁴³

Shortly thereafter, the United States and Mexico reached an agreement and Trump indicated that “[t]he Tariffs scheduled to be implemented by the U.S. … against Mexico, are hereby indefinitely suspended.”⁴⁴ The United States and Mexico signed a joint declaration on June 7 involving “a set of joint obligations” that, in the words of the accompanying U.S. State Department press release, “benefit both the United States and Mexico” with the goal of “stem[ming] the tide of illegal migration across our southern border and to make our border strong and secure.”⁴⁵ The joint declaration promised that the United States and Mexico would “work together to immediately implement a durable solution” to “the humanitarian emergency and security situation” resulting from “the dramatic increase in migrants moving from Central America through Mexico to the United States.”⁴⁶ Mexico agreed to “take unprecedented steps to increase enforcement to curb irregular migration, to include the deployment of its National Guard throughout Mexico, giving priority to its southern border.”⁴⁷ Since signing this joint declaration, Mexico has taken certain measures to increase its enforcement against unauthorized migration.⁴⁸

The joint declaration also indicated the United States’ intention to “expand the implementation of the existing Migrant Protection Protocols across its entire Southern Border.”⁴⁹ The Migrant Protection Protocols are a Trump administration policy under which asylum seekers arriving in the United States from Mexico await their immigration proceedings in Mexico rather than in the United States.⁵⁰ The joint declaration explained: “This means that those crossing the U.S. Southern Border to seek asylum will be rapidly returned to Mexico where they may await the adjudication of their asylum claims.”⁵¹

In April and July of 2019, Attorney General Barr issued binding immigration decisions designed to further deter asylum seekers from coming to the United States and to tighten the legal standard by which applicants could obtain asylum. On April 16, 2019, Barr issued a decision determining that all asylum applicants in DHS custody are subject to mandatory detention pending the adjudication of their claims unless the government allows that applicant to be released on parole—a decision that severely restricts the ability of asylum applicants to be released from detention.⁵² On July 2, a federal judge issued an injunction blocking the enforcement of Barr's decision, holding that “it is unconstitutional to deny [immigrants who had entered the United States, requested asylum, and were determined to have a credible fear of persecution] a bond hearing while they await a final determination of their asylum request.”⁵³ Barr's other decision, issued on July 29, 2019, changed the standard by which migrants could obtain asylum for claims involving family groups.⁵⁴ Under the Refugee Convention, individuals are eligible for asylum if they express a well-founded fear of persecution based on a protected ground, including “membership of a particular social group,”⁵⁵ and U.S. law has long interpreted an immediate family unit to compose a cognizable “particular social group.”⁵⁶ Barr's ruling narrows this standard, declaring that “an alien's family-based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.”⁵⁷

In addition to efforts to restrict the availability of asylum and to encourage the United States’ southern neighbors to play an increasingly active role in stemming unauthorized migration through the region, the Trump administration has pushed its agenda with respect to constructing a wall along the southern border. After Congress refused to provide the desired level of funding to build the wall, Trump declared a national emergency at the southern border on February 15 in order to access additional emergency funds.⁵⁸ On April 5, the House of Representatives filed a lawsuit arguing that the Trump administration's attempts to circumvent Congress in using funding appropriated for other purposes violated the Appropriations Clause of the Constitution and the Administrative Procedure Act.⁵⁹ On June 3, the House of Representatives’ motion for a preliminary injunction was denied for lack of standing and subject matter jurisdiction.⁶⁰ A separate challenge to the Trump administration's border wall was filed in the Northern District of California, leading a federal district court to grant a permanent injunction on June 28 against construction of portions of the wall.⁶¹ Although the Ninth Circuit denied the government's motion for a stay of the injunction,⁶² the Supreme Court overturned this decision and stayed the injunction on July 26.⁶³ The litigation is currently pending in the Ninth Circuit.