Will US Accelerate Global Shift Against Asylum Hopefuls?

August 4, 2019

A Honduran refugee flees gang violence at home, heading north to claim asylum in America. A Rohingya refugee in Bangladesh, facing genocide back in Myanmar, wonders about the status of her application to be resettled with family in Chicago.

Under international treaties and U.S. immigration law, America is required to shelter people like these if they can demonstrate “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

But those who’ve fled their home countries due to past persecution or fear of future persecution, known as refugees, and people who say they’re refugees but haven’t yet been evaluated, known as asylum-seekers, have found their paths to American soil increasingly blocked by government policy changes over the past two and a half years.

Obstacles have ranged from a recently blocked attempt to reserve asylum eligibility only for those who cross the border at points of entry, despite long-standing law that says asylum can be granted no matter one’s entry method, to an ongoing “Remain in Mexico” policy that leaves almost 99% of asylum-seekers stranded at the border without lawyers to help them.

Meanwhile, the administration has slashed refugee resettlement to its lowest-ever levels at a time when demand has never been greater.

And for about a week last month, it looked like a July 16 rule — since temporarily blocked by a California federal judge — would effectively end asylum-seeking for all non-Mexicans over the southern border by requiring them to seek asylum in the first country they pass through.

The administration and its supporters say the changes aim to improve a system that previously allowed families to illegitimately claim a fear of persecution and then settle in America while their applications were evaluated via an often-yearslong process.

But to human rights experts, the government’s current attitude towards asylum-seekers and refugees demonstrates a distressing breach of international commitments to provide access to justice to those most in need.

Jennifer Podkul, senior director of policy and advocacy at Kids in Need of Defense, or KIND, told Law360 Trump has entered the U.S. into “a race to the bottom” alongside the European Union and Australia, two places that have also made refuge harder to come by in recent years.

“The world is watching what the United States is doing,” she added. “It’s troubling not just for the people who are trying to access the United States, but for any people in the world who feels like they need to flee their homes and seek safety … we’re going to see more opportunities closing for them.”

Changing Policies

For more than three decades, the U.S. led the world in opening opportunities for people in need.

The U.S. Department of State has estimated that more than 3 million refugees settled stateside since 1980. As for asylum-seekers, the country accepted 58% of claims in 2012 — compared to just 35% last year.

The U.S. Department of Homeland Security did not respond to requests for comment on the decrease in asylum grants, but in court filings and statements, the Trump administration has indicated that limiting the applications in the first place will mitigate strain on the country’s backlogged and overwhelmed immigration system.

In its July 16 bid to require asylum-seekers apply in a third country — presumably Mexico — before trying in the U.S., the government also noted that few asylum-seekers actually qualify for refugee status.

“A large majority of the asylum claims raised by those apprehended at the southern border are ultimately determined to be without merit,” the proposed rule stated.

Trump put it differently at a Grand Rapids, Michigan, rally in March.

“They’re all met by the lawyers and they say, ‘Say the following phrase: I am very afraid for my life,’” Trump said to the crowd. “OK, and then I look at the guy, he looks like he just got out of the ring. He’s the heavyweight champion of the world. It’s a big fat con job, folks.”

Via court challenges, coalitions of nonprofits have managed to temporarily block the third-country asylum rule. Friday, they won a permanent block on Trump’s earlier attempt to restrict asylum eligibility to those crossing at ports of entry.

But courts have upheld other policies, like Remain in Mexico, and Trump has floated introducing further barriers, such as asylum application fees. Meanwhile the prospects of international intervention are slim, according to David Abraham, an asylum law expert and professor emeritus at the University of Miami School of Law.

Although the U.S. is a signatory to the United Nations’ 1967 Protocol Relating to the Status of Refugees, Abraham said it would take years for America’s peers to formally declare the U.S. “out of compliance” with its promises.

“And there’s no automatic mechanism built into the treaty,” he added, “for sanctioning those who are not living up to it.”

It’s not just asylum law changes that have experts worried. According to the United Nations High Commissioner for Human Rights, the global population of forcibly displaced people increased by 2.3 million people last year to a record high of 70.8 million refugees, internally displaced people and asylum-seekers.

Despite the soaring demand for placements, however, America resettled just 22,491 refugees in the most recent fiscal year, with the largest source countries being Democratic Republic of the Congo, Myanmar and Ukraine.

The number marks a record low and comes in at less than half of the government-mandated ceiling for resettlements, which Trump slashed from 85,000 to 45,000 in his first year in office.

His administration has since cut the cap even further, to its lowest ever mark of 30,000, in order to prioritize processing the unprecedented numbers of asylum-seekers at the southern border.

Let Others ‘Bear the Burden’

Limiting America’s population of refugees and asylum-seekers makes sense to many conservatives. Andrew “Art” Arthur, a former immigration judge who now works at the Center for Immigration Studies, told Law360 that the U.S. “is not the only country on the face of the earth that provides a haven,” citing other Western democracies that could help pick up the slack.

“Traditionally, we accepted more than the rest of the world combined,” he said. “But we’re not the only signatory to the 1967 protocol — it is appropriate for other countries to bear the burden.”

Similar logic underlies his backing of the administration’s third-country asylum rule. He told Law360 the U.S. isn’t the only country that can protect refugees fleeing serious harm, pointing out that Mexico is one of the world’s largest economies as well as a vacation destination for many Americans.

“You’re more likely to be granted asylum in Mexico than you are in the United States, if the purpose of your journey is getting security from your home country,” he said. “If the purpose of your journey is, ‘I want to be in the best economic position that I can,’ well, that’s a different issue — and that’s not why asylum exists.”

He also cited a similar rule in the European Union known as Dublin III.

Passed in 2013, the regulation requires asylum-seekers to make their claim in the first EU country they arrive in. Using the EU’s coordinated fingerprinting system or records like train tickets, authorities in countries like Germany or France determine an asylum-seeker’s state of first entrance — usually Italy or Greece — and then transfer that person back.

But Grace Meng, a senior researcher for Human Rights Watch, said Dublin III has come under fire from the European Court of Human Rights for the same reason critics lambast Trump’s attempt to mirror it: the countries closest to crisis states are rarely well-equipped to handle a huge volume of asylum claims.

“Greece does not have the kind of asylum system that is adequately protected compared to Germany or some of the other countries that people are trying to get to,” Meng noted.

Neither does Mexico, according to a 2017 survey of asylum-seekers in Mexico by Amnesty International. Nearly a quarter of responses indicated someone had experienced refoulement, which occurs when a country sends asylum-seekers back to where they claim a well-founded fears of persecution.

Three-quarters of those detained by Mexican authorities said they were never told of their right to seek asylum, and nearly a third said they weren’t even interviewed upon entry.

The U.S. has touted Mexico’s rising numbers of asylum applications as proof that it could handle the strain if all U.S.-bound asylum-seekers started filing in Mexico first.

But according to Mark Manly, the United Nations High Commissioner for Refugees representative in Mexico, the 196% jump in applications this year is actually overwhelming the country’s refugee commission.

Nearly 60,000 applications are expected to be processed this year, by a staff of about 50.

“The numbers have outstripped their capacity,” Manly told Law360.

Cases Come and Go, Changes Keep Coming

When U.S. District Judge Jon S. Tigar issued a preliminary injunction against the third-country asylum rule on July 24, he noted that “the government’s own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims.”

“Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be (1) exposed to violence and abuse from third parties and government officials, (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which they fled persecution,” the judge wrote.

The Trump administration, which had argued that the unprecedented number of families seeking asylum merited extreme and sudden measures, has already appealed the case to the Ninth Circuit.

In the meantime, the U.S. continues to send asylum-seekers who reach American soil back to Mexico via a separate rule known as the Migrant Protection Protocols, more commonly called Remain in Mexico.

That policy requires asylum-seekers to wait out their cases across the border, forcing individual applicants to rely on ad hoc lists to determine when their day in court. According to data from the Transactional Records Access Clearinghouse at Syracuse University, nearly 99% of those sent back have failed to obtain legal counsel while waiting.

TRAC data also show that those without lawyers are five times less likely to win their claims than those with lawyers.

“In court observations, we saw judges really questioned the government attorneys: How is this person going to get notice of the next hearing if the address is care of CBP?’” Meng said.

She added that stranding asylum-seekers in dangerous, cartel-dominated border towns could be considered refoulement.

“This Remain in Mexico program was not designed to protect migrants,” Meng said.

But unlike the third-country asylum rule that Judge Tigar temporarily blocked, the Remain in Mexico rule has been allowed to stand based on a contested interpretation of federal immigration law.

In overturning an injunction of Remain in Mexico that Judge Tigar had also issued, the Ninth Circuit wrote in May that Remain in Mexico is “one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis.”

Legal challenges to that rule, and others already issued or expected, will continue to wind their way through America’s justice system over the coming months.

All the while, asylum-seekers will continue to remain in Mexico, waiting for their numbers to be called; refugees overseas will continue hoping to qualify for a swiftly shrinking pool of accepted applicants.

For Abraham, that reality — compounded with other changes made over the past two years — reflects “the current environment of worldwide insecurity about globalization and people having too much free movement.”

“This is a contagion,” Abraham said. “And we are accelerating that contagion.”