The Trump administration on Wednesday unveiled a series of proposed restrictions to the country's asylum system that would constitute one of the most far-reaching attempts yet to redefine who qualifies for safe harbor on U.S. soil.
A 161-page proposal by the Departments of Justice and Homeland Security would establish additional barriers at all stages of the U.S. asylum process, granting officers and judges more power to deny requests for protections. It would make it more difficult, if not impossible, for foreigners to seek refuge from certain forms of persecution, including gender-based violence, gang threats and torture at the hands of "rogue" government officials.
The draft rule is slated to be formally published in the federal government's journal of regulations on Monday, after which the public will have 30 days to comment on it. The government will then work on publishing a final regulation that may or may not be altered in response to the public comments.
The impact of the rule on humanitarian programs at the southern border will be contingent on when it goes into effect because the administration has been rapidly expelling most unauthorized migrants from there since late March. If enacted, however, the proposed changes would rewrite multiple regulations and affect cases of new border crossers, as well as asylum-seekers already in the U.S.
"If this regulation is finalized and put into place, it would result in many legitimate asylum-seekers being denied the chance to seek refuge in the United States," Sarah Pierce, a policy analyst at the non-partisan Migration Policy Institute, told CBS News. "There are so many provisions in here that make it impossible for even the most meritorious asylum-seekers to get through the U.S. asylum process."
Under U.S. law, foreigners can be eligible for asylum if they can prove they were persecuted — or have a well-founded fear of persecution — in their native countries based on their race, religion, political opinion, nationality or membership in a "particular social group." Migrants, including those who cross the border without authorization, can apply for asylum, as well as other lesser forms of protection, to block their deportation.
The Trump administration has argued that Central American migrants in search of better economic opportunities have exploited these humanitarian programs to gain easy entry into the U.S. Over the past three and a half years, the administration has implemented a series of restrictions to limit access to these protections, which officials have said are plagued with loopholes.
Implementing the proposed changes, the government said in its proposal, would help officials "screen out non-meritorious claims and focus limited resources on claims much more likely to be determined to be meritorious."
The rule would require immigration judges to generally reject asylum cases of people who fear being persecuted in their home countries because of their gender or resistance to being recruited and coerced by gangs, guerrillas, terrorists and other non-state groups.
The definition of persecution would be changed to "an extreme concept of a severe level of harm." Persecution would not include, among other threats and mistreatment, "every instance of harm that arises generally out of civil, criminal, or military strife in a country," nor "any and all treatment that the United States regards as unfair, offensive, unjust, or even unlawful or unconstitutional."
Even if migrants satisfy the burden of proof to receive asylum, the rule would encourage immigration judges to deny the relief to applicants who crossed or attempted to cross the border illegally, did not file taxes, worked without authorization or used fraudulent travel documents. Unlike the lesser forms of protection from deportation, asylum is discretionary, meaning a judge can deny the protection to anyone, even people who prove they could be persecuted if returned to their home countries.
Judges would also have to consider other adverse factors, including traveling through a third country to reach the U.S., living undocumented in the country for more than a year and having criminal convictions that were vacated or expunged.
Under the proposal, protection under the United Nations Convention Against Torture would no longer be available to people who were tortured, physically or mentally, by "rogue" public government officials "not acting under color of law."
Other proposed changes in the rule include making it more difficult for migrants who are barred from seeking asylum to pass interviews that determine their eligibility for relief under the United Nations anti-torture convention or "withholding of removal," the other lesser form of protection. Over the past few years, the administration has rolled out several policies to disqualify most U.S.-bound migrants from asylum, including those who, like Mexico, to reach the southern border.
The definition of a "frivolous" application would also be expanded under the proposal, giving judges and asylum officers more leeway to reject "manifestly unfounded or otherwise abusive claims."
Pierce, the immigration expert, said the regulation is one of several "layers" of asylum restrictions the administration has devised to mitigate unfavorable rulings in federal courts that have hindered its agenda. She said the proposed rule could be one of the tools the administration uses to deter migrants after theunder which officials are expelling most border-crossers is lifted.
The administration has said the expulsion directive by the Centers for Disease Control and Prevention is designed to block the entry of migrants who could spread theinside the U.S. At an event hosted by the Heritage Foundation on Wednesday, acting Homeland Security Deputy Secretary Ken Cuccinelli said the directive, which has been extended indefinitely, would be the "order of the day for a while," citing the lack of a coronavirus vaccine.
Pierce said Wednesday's proposal would not achieve its stated purpose of curtailing meritless asylum claims. "If they sincerely wanted to deter less-than-legitimate asylum claims, they would look at processing asylum applications more fairly and efficiently, rather than just to put up barriers at every step along the way."