The Trump Administration’s attack on the U.S. refugee and asylum system has been unrelenting — and cruelly — effective.
In the summer of 2019, the Administration put in place a policy that denies asylum to any person who has traveled through another country and failed to request asylum in the transit state. It has announced a reduction of refugee admissions to 18,000, a more than 80% cut from the target in the last year of the Obama Administration.
Trump’s precipitous decisions in the Middle East have created a displacement crisis, causing hundreds of thousands of Kurds to flee advancing Turkish forces in northern Syria.
Trump made his opposition to refugee resettlement clear during the campaign. In Trump’s first year in office, Canada — a country with one-tenth the U.S. population — surpassed the U.S. in refugee resettlement. The contrast between the two new North American leaders could not have been clearer. While Trump announced a ban on admitting any refugees from Syria, Prime Minister Trudeau sent Canadian officers to to facilitate the entry of 25,000 Syrian refugees.
Globally, the number of refugees now exceeds 25 million — the highest number in a generation — and it continues to rise. Last year, the UN General Assembly adopted a non-binding Global Compact on Refugees that affirmed fundamental principles of international law and urged the adoption of a comprehensive approach to responding to refugee situations around the world. Only the United States and Hungary refused to support the Compact.
These actions have inflicted harm on refugees around the world seeking to rebuild their lives and join family in the United States. But they also signal the loss of U.S. leadership on refugee issues at the global level, and they have provided unfortunate examples to other countries facing domestic pressures to reduce refugee support.
As damaging as the Administration’s actions have been at the international level, Trump’s damage to the U.S. asylum system has been worse.
Ironically, this was not one of his campaign promises. His promise to build a wall, recall, was to protect the U.S. against “criminals” that Mexico was sending to the United States. But once in office, the Administration had to confront the fact that undocumented migration from Mexico has fallen 90% over the past several decades and that there has been a net outflow of Mexicans from the United States in recent years.
So the target became migrants who were leaving Honduras, El Salvador and Guatemala in increasing numbers, hoping to seek asylum due in large part to violence, drought and poor economic conditions. When the migrants banded together for safety, Trump called the movement of caravans an “invasion” of the United States and sent the military to the border.
The problem for the Administration came when the migrants arrived at our border. Unlike Mexican migrants of an earlier era, who tried to evade border authorities, the Central Americans sought them out — in order to apply for asylum in the United States. Under U.S. law, they had a right to claim asylum and have their cases adjudicated in the U.S. — they could not simply be deported.
According to the Administration, these migrants were gaming the system. Requesting asylum would give them several years of residence in the U.S. whatever the merits of their claims. The Administration claimed that migrants were bringing children with them to ensure that they would not face long-term detention in the U.S., and knowing that a backlogged system would take years to hear their claims. The whole system, said the White House, encouraged frivolous asylum claims from people who were in fact “economic migrants.”
Rather than attempting to fix the asylum adjudication system by increasing the number of adjudicators and adopting other streamlining measures, the Administration has adopted policies aimed at simply stopping the flow.
In an effort to persuade Central American migrants that a journey to the southwest border would be painful, if not fruitless. Attorney General Sessions announced that all persons caught illegally entering the United States would be criminally prosecuted — the so-called Zero Tolerance policy. While U.S. law makes illegal entry a misdemeanor, it is rarely enforced against first time entrants; the usual enforcement action is deportation. But the Trump Administration knew that criminal prosecution would enable them to separate parents from their children, who could not be placed in jails while the parents’ criminal cases proceeded.
The removal of several thousand kids from their parents’ arms was not just an implication of the Zero Tolerance policy, it was a primary motivation for it. It was hoped that such a draconian — and, as a court found, unconstitutional — measure would deter the future arrivals of families.
Sessions did further damage to the U.S. asylum system by instituting another new policy. Exercising his authority to set standards for immigration adjudicators, he issued a decision that makes it nearly impossible for persons claiming a fear of gang or domestic violence to be granted asylum — grounds upon which many Central American asylum-seekers base their claims.
Other policies have followed. The Department of Homeland Security and the Department of Justice issued regulations that deny asylum to persons who enter the U.S. between official border crossing points. Most significant is a policy that permits the return of asylum-seekers to Mexico while their claims are adjudicated — despite a federal statute saying that a person anywhere in the U.S. may file for asylum. In a grandly Orwellian gesture, the government called these new rule the “Migrant Protection Protocols.”
As a result of these various new policies, tens of thousands of Central Americans are now waiting in Mexico for a hearing date in the U.S. The wait may be long, as the U.S. is in no hurry to adjudicate the asylum claim and legal advice to asylum-seekers waiting in Mexico is nearly non-existent. While they wait, asylum-seekers are prey to criminals. With no means of support, many opt to return home — precisely the result that the Administration seeks.
And still there is more. Over the past several months, the Administration signed agreements with El Salvador, Guatemala, and Honduras under which the U.S. would be able redirect asylum-seekers who reach the United States to these countries for adjudication of their claims. Most significantly, Trump, after threatening steep tariffs on Mexican goods, has coerced a commitment from the government that they would begin to stop Central Americans at the southern border of Mexico.
To avoid the need for further negotiations with foreign states, in July the Administration unilaterally imposed a rule that accomplished much of what was intended with the Central American and Mexican agreements. The policy bars asylum for all persons who have travelled through another country before arriving in the U.S. if they could have applied for asylum in that country. The regulation does not apply to other claims for relief, so it cannot provide a total bar to entry of all persons fleeing persecution and torture. But its impact will be devastating for tens of thousands of asylum-seekers. A lower court enjoined the rule pending a determination of its legality; but the Supreme Court lifted the lower court’s order last month and has thereby permitted the Administration to begin implementation of the policy. The Court’s ruling is not a final decision on the legality of the policy, but, to use a sadly apt phrase, the writing is on the wall.
The likely outcome of this welter of policies is plain. Asylum claims in the U.S. will plummet. Indeed, the number of persons arriving at the southwest border has declined significantly in recent months, leading the Administration to declare victory.
But what kind of victory is this?
Central Americans unable to make asylum claims in the U.S. are unlikely to find protection elsewhere. The Mexican asylum system was overwhelmed even before these new policies were announced. And no one in the Administration can seriously believe that El Salvador, Guatemala, and Honduras will provide an adequate process for adjudicating large numbers of claims.
As noted, Trump’s actions can be understood as based on the view that the vast majority of those requesting asylum are simply “economic migrants” who do not merit protection under the U.S. asylum system. But this is plainly wrong, as the significant number of Central Americans granted asylum by U.S. adjudicators attests.
It is far more likely that the Administration’s actions reflect an even baser judgment: that the United States has no responsibility to offer safety to refugees and asylum-seekers who face persecution, violence and other threats to life at home. (The cold shoulder given to the Bahamian victims of Hurricane Dorian is only the most recent example.) This is a dramatic and shameful betrayal of values that most Americans hold — values that they would like to see their government uphold.
In the 1950s, the philosopher Hannah Arendt wrote a classic account of the tragedy that befell refugees in the pre-War era who fled their homes but were accepted nowhere else in the world. They were, in her words, treated as “the scum of the earth.” It is profoundly disturbing that President Trump’s attack on refugees and asylum-seekers can be seen as embracing a similar view.
Alex Aleinikoff is the director of the Zolberg Institute on Migration and Mobility.