In June, the Trump administration has proposed a new asylum rule that would make it virtually impossible for many women, children and people fleeing gang and domestic violence to obtain asylum in the United States.
It might be better to term it an anti-asylum rule—as the effect of the regulation, if implemented, will be devastating for anyone seeking humanitarian protection in the United States whose claim doesn’t fit into the narrow (and blatantly illegal) definition of refugee that the new asylum rule would impose.
One does not need to be an immigration expert to offer a critique of this rule, as it is fundamentally opposed to the basic American principles of providing refuge to those in need. It harms all asylum seekers fleeing from a country or a situation where the government is either persecuting them or can’t protect them from persecution.
It undermines the entire framework for refugee protection that has been in place since the Refugee Act of 1980. It’s not a perfect framework, but the current laws and regulations, and the body of immigration case law interpreting them, are all premised on the idea that there must be meaningful access to asylum for anyone seeking it.
The Trump administration, however, refuses to acknowledge this responsibility and has been systematically chipping away at refugee protection since day one.
This new asylum rule is the culmination of three years of efforts to block humanitarian immigration, as well as immigration of people of color and the Muslim faith, that began days after Trump’s inauguration when President Trump signed the executive order banning many Muslim immigrants and refugees.
The order also suspended the refugee program temporarily—and since that time, the president has reduced refugee admissions to a trickle.
Refugee admissions are largely within the control of the administration, as the program involves decisions to bring persons recognized as refugees into the country. But asylum cases are governed by regulations and case law, because it involves requests for refugee protection made inside the country.
Consequently, asylum has far more procedural protections, so it has taken longer to pull apart the program—but the administration has used every trick in the book to stop it piecemeal, particularly targeting domestic violence survivors and Central Americans.
Through memos, executive orders and attorney general opinions, the administration has attempted to change legal standards and reinterpret statutory provisions that set out procedures for asylum adjudications. The administration has also issued micro-regulations aimed at people traveling in caravans, people who failed to apply for asylum in Mexico before entering the United States and people coming from anywhere south of the Mexican border because they might spread COVID-19.
Any situation, any excuse, to try to block asylum seekers from entering the U.S. and accessing their legal right to apply for asylum has been used.
The new regulation is a broadening and a codification of all these actions, plus plenty of new measures, that will place asylum out of reach for most people regardless of where they come from. Virtually the only people likely to qualify for asylum status under these new rules are political or religious activists who openly oppose a government, seek to use political means to overturn it and have suffered extraordinary harm or risk capture and murder if they returned home.
Women fleeing domestic violence that the state won’t stop wouldn’t qualify; children fleeing gang recruitment wouldn’t qualify. Trade unionists, artists, journalists, religious reformers—virtually anyone who stands up to oppression that doesn’t fall under government with a capital “G” would likely be found ineligible for asylum.
And for those whose suffering is in the private sphere—especially persecution based on gender or sexual orientation—the new rules would make it doubly difficult. Not only do the regulations specifically forbid a determination that persecution could be found on the basis of gender, but they also prevent adjudicators from considering “private” disputes where the persecutor(s) are not part of the government, regardless of how much power they exercise over an individual.
The rule goes even further, however, banning the use of stereotypical claims that paint a class or culture in negative terms—using as an example, claims arising from treatment of women in “machismo” cultures—arguing that this is inherently unfair and unreliable.
In essence, the rule prevents women from presenting their life experiences as part of their claim—ignoring the fact that asylum relies on both subjective and objective evidence to prove that someone has a well-founded fear of persecution.
Even if an applicant makes it through all the definitional and evidentiary burdens put in their way, adjudicators would now be required to consider a list of negative factors—such as manner of entry to the U.S. and how hard you tried to relocate within your own country—to see if there is a discretionary reason for denying asylum.
Asylum has always been a discretionary form of immigration relief—as are many forms of relief providing a permanent status—but discretion is supposed to be used to deny a claim only when the applicant has done something so egregious that it cancels out the fact that someone is a refugee. The rule perverts discretion into permission to deny asylum.
Aicha’s story, shared by her attorneys from the Tahirih Justice Center (and used here with permission), illustrates the extraordinary anxiety this rule has provoked. Aicha reflected:
“The proposal of ending gender-based asylum is such [an] attack on women and girls all over. If this was in place or had taken effect while I was filing for my asylum, this could’ve probably ended my life.
“For women and children fleeing violence and still in the same places where laws of the country does not protect them it is even more dangerous and cruel. They have nowhere to turn to. Many end up suicidal because they give up or many stay in abusive relationships and end up dying. These crimes are not private crime they are systemic crimes.
“I want people to know that no one leaves their home, the place they know for another place where they know no one, if there is not danger. Now I have a life where I can make choices. work, go to school and take care of my family. Without asylum I won’t be able to have that freedom.
“Seeking asylum is a last chance for many of us. It is not a choice. It is a must. It is life and death situations that pushes people to flee their home. It is because we have absolutely no choice.”
Aicha’s message must be shared and repeated by all of us. Asylum is hope. Asylum offers a future for those who have despaired of ever feeling safe again. The U.S. must continue to serve as a beacon of hope by offering people a genuine chance to seek protection.
You can comment on the new rule here until July 15.
Let the Trump administration know that it must continue to protect those whose own countries have failed them.