Trump’s directive also calls for tightening asylum rules by banning
anyone who crosses the border illegally from obtaining a work permit,
and giving courts a 180-day limit to adjudicate asylum claims that now
routinely take years to process because of a ballooning case backlog.
The order, announced in a presidential memorandum, comes as the
president is seeking to mobilize his supporters with a focus on illegal
immigration ahead of his 2020 reelection campaign.
“If the Democrats don’t give us the votes to change our weak,
ineffective and dangerous Immigration Laws, we must fight hard for these
votes in the 2020 Election!” the president wrote on Twitter after the
White House published his order.
The surge of migrants from Central America arriving at the U.S. southern
border with Mexico has frustrated the Trump administration, which has
been trying various methods to stem the flow, all of them thus far
unsuccessful. The proposed changes to the asylum system aim to address
one of the most confounding aspects of the surge: Families seeking safe
passage using long-standing U.S. asylum protections.
More than 103,000 migrants crossed the U.S.-Mexico border last month,
the highest level in more than a decade. About 60 percent were Central
American parents traveling with children who, upon arrival on U.S. soil,
have the legal right to request refuge from persecution.
Their numbers have overwhelmed the government’s ability to hold them in
custody and quickly process their claims. Adults who arrive with
children are typically assigned a court date and are released into the
country, often reuniting with family members and taking jobs while their
claims are pending.
Trump in recent weeks has increasingly mocked asylum seekers as
fraudsters trying to game the system by making up stories about their
hardships and fears of return to their native lands. Though homicide
rates in Central America are among the highest in the world, many of
those now arriving acknowledge they are fleeing poverty and
hopelessness, which are not grounds for asylum protections.
The new White House measures, which call for new regulations in 90 days, follow one week after Trump issued a separate memorandum directing
the secretaries of state and homeland security to find ways to combat
visa overstays; it is another example of the administration trying to
squeeze migration as it argues that the influx of undocumented people
amounts to a national emergency.
“The extensive resources required to process and care for these
individuals pulls U.S. Customs and Border Protection personnel away from
securing our Nation’s borders,” Trump’s latest memorandum reads.
The goal of the move, the document states, is “to strengthen asylum
procedures to safeguard our system against rampant abuse of our asylum
process.”
The memorandum directs Attorney General William P. Barr and acting
homeland security secretary Kevin McAleenan to propose regulations
within 90 days that would change various aspects of the way asylum cases
are handled.
It calls for the United States to charge a fee for asylum applications,
and it seeks to ensure that, “absent exceptional circumstances,” all
asylum applications will be adjudicated within 180 days of filing.
The moves would prohibit those who have entered the United States
illegally from receiving provisional work permits until they have been
approved for relief or protection from removal.
U.S. immigration law grants the attorney general the authority to impose
fees on asylum applicants, but does not require such payments, and
migrants seeking refuge to avoid deportation have not been charged.
David A. Martin, a former Homeland Security deputy general counsel who
helped make changes to the asylum system in the 1990s, said that he had
never heard of charging a fee to applicants and that it would be a “bad
idea.”
Asylum seekers are fleeing for their lives — fearing torture or death in
their home countries — and often cannot afford to survive without
assistance in the United States, he said.
“Genuine asylum seekers by definition leave in the most urgent of
circumstances,” Martin said. “As a group, they tend to be very short on
resources. If you’re going to leave the possibility of refuge for people
who legally qualify truly open, you wouldn’t impose a barrier of a
fee.”
Charging a fee for asylum claims would put the United States in the
clear minority. A study of 147 countries found that the “vast majority”
did not charge a fee to apply for asylum, according to a December 2017
report by the Law Library of Congress’ Global Legal Research Center.
Some nations charged migrants fees for temporary or permanent protection
visas, though migrants could apply for waivers.
Proposing and implementing regulations typically takes months and
requires a period of public comment. But Martin said the Trump
administration could carry out the changes more quickly if it declares
an urgent need.
In February, Trump declared a national emergency to free up federal
funding to expand the wall on the nearly 2,000-mile border with Mexico.
Several lawsuits are pending against the emergency, including one filed
by the Democrat-controlled House of Representatives.
Trump referred to the national emergency in the memo, saying the border situation is growing “increasingly severe.”
Federal law already requires that the government adjudicate asylum cases
within 180 days, Martin noted. The requirement took effect in the 1990s
and helped reduce asylum fraud and slash a large backlog of cases.
Under that earlier change, the government also restricted work permits
to migrants whose cases had been pending at least six months.
But almost a decade ago, Martin said, asylum cases started to pile up
again and the government failed to invest enough in the immigration
courts to keep up. Now the court backlog exceeds 850,000 cases,
including asylum, with approximately 400 judges to handle them.
Clearing cases in six months is a good objective, Martin said, but “it’s not like a brand new idea.”
The White House memo directs the Department of Homeland Security to
reassign personnel to improve screening of asylum applicants,
“strengthen law enforcement” and enforce deportation orders from
immigration courts.
Advocates for immigrants predicted that Trump's proposals would face
swift legal challenges and a protracted battle in federal court.
But they said the presidential memo could cause chaos in the already
overwhelmed immigration courts, intensifying pressure on immigration
judges who would be subject to case-completion quotas.
Keren Zwick, associate director of litigation for the National Immigrant
Justice Center, said the court system is not equipped to handle cases
as quickly as would be required. She worries that immigrants would not
have fair hearings because they wouldn’t have time or money to gather
evidence, find a lawyer, and support themselves while they await a
hearing.
“It’s not that asylum seekers don’t want other cases to be quickly
adjudicated,” she said. “There’s a fine line between quick adjudication
and being railroaded through the system. . . . It’s not like asylum
seekers want to sit here in limbo forever,” she said. “But they also
don’t want to be punished for seeking asylum.”
