New Rules for Asylum Seekers

By:

In fiscal year 2017, the United States received more than 79,000 asylum applications from Honduras, Guatemala, and El Salvador, together known as the Northern Triangle countries. In mid-October of 2018, a caravan of about 160 migrants departed Honduras for the U.S., and as the caravan has traversed Central America, it has grown to an estimated 4,000 or 5,000 migrants. The International Organization for Migration, the United Nations’ migration agency, views the recent caravans as a reflection of the region’s poverty and violence, and the desire for unification with family members already in the U.S. Upon arrival, many migrants from Honduras and Guatemala plan to apply for asylum, citing gang violence and persecution in their home countries. Some migrants have formed these caravans in part because the large numbers provide security against the dangers associated with individual travel and the predatory practices of smugglers. However, the migrant caravans have drawn the attention of U.S. President Donald Trump, whose administration has ordered almost 8,000 U.S. troops to the U.S.-Mexico border and issued measures to limit asylum protections only to asylum-seekers who enter the U.S. at an official port of entry.

How Does the U.S. Asylum Process Work?

The United States Citizenship and Immigration Services (USCIS) operates two pathways to obtain asylum. Affirmative asylum permits an applicant to petition for asylum with USCIS at a U.S. port of entry or within one year of entering the U.S. Defensive asylum allows an asylum-seeker to petition for asylum as part of a removal proceeding. The asylum process begins with a USCIS determination of whether an applicant has a credible fear of persecution in their home country. If an asylum applicant demonstrates a credible fear of persecution, which was the case with 76% of the asylum applicants between October 2017 and June 2018, applicants are legally allowed to remain in the U.S. in the months or years until a future asylum hearing. Fewer than 10% of Central American applicants are ultimately granted asylum by an immigration judge. Those deemed eligible for asylum are permitted to apply for lawful permanent resident status.

The Executive Branch’s Changes to the U.S. Asylum Process

On Friday, November 9, 2018, the Trump Administration published an Interim Final Rule which restricts where applicants may request asylum. Citing the President’s broad authority under the Immigration and Naturalization Act (INA), the Department of Justice (DOJ) and the Department of Homeland Security (DHS) plan to restrict the asylum process to those applicants who apply at a legal port of entry to the U.S. Section 212(f) of the INA provides that the President may suspend the entry of “all or any class of aliens” into the U.S. whenever the President finds that entry would be “detrimental to the interests of the United States.” By presidential proclamation, a suspension of entry may last “for such period as [the President] shall deem necessary.” President Trump’s proclamation suspends for ninety days the right of any person who illegally crosses the U.S.-Mexico border to seek asylum within the U.S. Under the Administration’s plan, migrants  apprehended within the U.S. will be swiftly returned to their home country, even if they request an asylum proceeding to defer deportation. However, migrants who are apprehended crossing into the U.S. illegally will still be allowed to apply for relief through other avenues, such as “withholding of removal” or under the United Nations Convention against Torture, but those avenues subject asylum-seekers to a higher bar for proving a fear of returning home and do not provide a path to lawful permanent status. Additionally, DOJ and DHS have stated that the new regulations will not apply to unaccompanied minors or retroactively to noncitizens already present in the U.S.

The American Civil Liberties Union (ACLU) and other immigration advocacy groups filed suit within hours after the President’s proclamation was released. The ACLU lawsuit challenges the Administration’s authority under the INA to restrict where applicants may petition for asylum.  In addition, six Hondurans in the caravan have challenged the Trump Administration’s previous actions. Their lawsuit, filed on November 1, 2018, alleges multiple violations of the Administrative Procedure Act and the group’s Fifth Amendment due process rights. The lawsuit asks the court to enter a declaratory judgment that would prohibit the President from denying asylum-seekers the opportunity to petition for asylum according to law.

How Can the U.S. Military Affect the Migrant Situation?

The 1878 Posse Comitatus Act (PCA) prohibits the use of U.S. troops to enforce domestic law, including immigration law, without congressional authorization. Under the PCA, U.S. troops may not participate in arrests, searches, seizures, evidence collection, interrogations, security patrols, crowd or traffic control, or other similar police functions. However, 1981 amendments to the PCA permit U.S. troops to support civilian law enforcement agencies by providing equipment, training, base operation, transportation, and intelligence assessments. Additionally, U.S. troops may perform aerial reconnaissance within twenty-five miles of the border.

At this time, U.S. troops sent to the border have primarily been employed to reinforce official ports of entry with razor wire and provide transportation and surveillance support to the DHS; however, officials have identified additional risks regarding the deployment of U.S. troops. One U.S. Army intelligence assessment cautions that 200 unregulated “militia” may be operating in proximity to U.S. troops. Additionally, U.S. troops may inadvertently encounter migrants as they work on reinforcing U.S. ports of entry. If that happens, the use of force in self-defense is restricted by the Chairman of the Joint Chiefs of Staff Instruction 3121.01B. As an additional precaution, the United States Northern Command Chief, Air Force General Terrence O’Shaughnessy, has prohibited U.S. troops from carrying service weapons unless part of the soldier’s essential duties, such as military police units.

Despite the presence of U.S. troops and additional asylum regulations, the largest migrant caravan continued on the path north this week, destined for the Tijuana border with San Diego.