Skip to Content

Trump Administration’s New Asylum Restrictions Face Legal Challenges

The Trump administration's new rule conditionally barring migrants from seeking asylum at the U.S. southern border is illegal, according to human rights experts.

The rule, announced Monday and effective Tuesday, states that all migrants who pass through a third country en route to the U.S. must first apply for—and be denied—asylum in that country in order to be eligible for protection at the southern border. It effectively cuts off asylum access for all but Mexican migrants.

Existing legislation, however, already addresses when an asylum seeker can be denied based on their relationship to a third country. The 1952 Immigration and Nationality Act provides two such circumstances: when the migrant had been "firmly resettled" in another country and when the migrant is subject to a "safe third country" agreement.

"There is no serious contention that merely transiting through a country would subject somebody to the firm resettlement bar," Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, told Fortune, and none of the Central American countries through which the migrants in question are transiting have safe third country agreements.

The American Civil Liberties Union has already filed suit against the Trump administration on these grounds and the fact that asylum cannot be denied based on the migrant's route to the U.S.

The complaint—which calls the rule "arbitrary and capricious"—also alleges that Attorney General William Barr and Acting Secretary of Homeland Security Kevin McAleenan violated the Administrative Procedure Act by issuing the rule immediately, without the required notice.

The text of the new rule, however, argues that the attorney general and secretary have "significant discretion to adopt additional bars to asylum eligibility" based on existing laws.

While the new restriction is being challenged in court, it's still technically in effect as of Tuesday. Democrats and human rights organizations have spoken out against enforcement, but supporters of the rule state it's necessary to address the immigration strains at the southern border.

The Departments of Justice and Homeland Security's announcement of the rule states that more than 436,000 of the over 900,000 currently pending immigration cases include an asylum application, "but a large majority of the asylum claims raised by those apprehended at the southern border are ultimately determined to be without merit."

According to Krishnaswami, it's because of the government’s own "misinterpretations of the asylum law" that it's seeing such numbers.

"A frivolous or meritless asylum claim is a claim brought by somebody who doesn't have a genuine fear of persecution," said Krishnaswami. "That's not what we're seeing. We're seeing people at the border who are fleeing horrific levels of violence and persecution."

The Trump administration has previously limited what qualifies for asylum, limiting the number of claims that appear—at least on paper—to have merit. For example, former Attorney General Jeff Sessions said last year that domestic and gang violence are no longer grounds for asylum.

Like the administration's attempt to block asylum claims outside official ports of entry, Krishnaswami said this new rule "is not a program that's designed to work."

"It’s designed to deter asylum seekers and it's designed to instill fear in their hearts. It's all about circumventing our obligation to offer asylum to people who are needing protection," she said. "Beyond that I don't think the administration has given a second thought to how this will actually affect human lives on the ground."

The United Nations Refugee Agency responded to the Trump administration's announcement with concern, calling the new restrictions excessive.

"We understand that the U.S. asylum system is under significant strain. And we are ready to play a constructive role if needed in helping alleviate this strain," UN High Commissioner for Refugees Filippo Grandi said in a statement.

"But we are deeply concerned about this measure," he added. "It will put vulnerable families at risk. It will undermine efforts by countries across the region to devise the coherent, collective responses that are needed. This measure is severe and is not the best way forward."

The rule provides exceptions for those who were already denied asylum elsewhere, those who are a "victim of severe form of trafficking in persons," and those who traveled solely through countries that are not parties to the 1951 Convention on the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture. Mexico is a signee of all three international agreements.

The asylum systems in Mexico and Guatemala are likely to see an influx of asylum seekers as a result of this rule, but neither are equipped to do so, said Krishnaswami. Moreover, the lack of legal access to asylum means desperate migrants are more likely to turn to smugglers.

"People are scared and they're desperate," said Krishnaswami. "There are reports about how every time the administration announces a new rule limiting asylum or a new xenophobic policy that will cut off people from accessing their human right to seek asylum, the market for smugglers suddenly goes up and the market for exploitation of vulnerable populations increases... That's the thing that concerns me the most."

More must-read stories from Fortune:

—What to expect from the second Democratic debate

—Who wins and loses as White House withdraws drug rebate plan

—A new holding center for migrant children is open in Texas

—Fed Chairman Powell: If Trump asks me to leave, I won’t

Tom Steyer mastered markets and now he wants to topple Trump

Get up to speed on your morning commute with Fortune’s CEO Daily newsletter.