A new Trump administration rule, which requires most migrants to apply for asylum in one of the countries they passed through before they can file for protection in the United States, has drawn sharp criticism from immigrant rights advocates and human rights organizations and will likely be challenged in the courts.
The new rule going into effect Tuesday requires asylum seekers arriving by land, who have traversed a third country that has signed onto the international refugee convention, to apply for protection in that country before they would be eligible to apply in the United States. The vast majority of people fleeing violence and instability in Honduras and El Salvador take land routes north, and now would be forced to apply for asylum in Guatemala or Mexico, before being eligible to apply in the United States, with a few exceptions.
Numerous immigrant advocate groups and human rights organizations have condemned the move as an unlawful alteration to asylum rules dodging a more appropriate legislative process, and the ACLU's Immigrants' Rights Project deputy director, Lee Gelernt, said the organization intends to sue and delay implementation of the rule.
The administration says the directive is necessary in the face of a crush of new asylum applicants at the southern border and lack of Congressional action.
"Ultimately, today's action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits," Department of Homeland Security Acting Secretary Kevin McAleenan said in a statement.
Asylum claims at the southern border have soared in the past few years, increasing roughly 70% from 2017 to 2018, to approximately 93,000, according to Department of Homeland Security data. Asylum is offered to those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and, after an initial "credible fear" interview to establish a basis for an asylum claim, the applicant's claim is vetted by an immigration judge. Officials say the number of families making the long, perilous journey and the proportion seeking asylum have both increased as smugglers have deployed a new strategy of offering migrants promises of legal residency in the United States if they declare they are afraid of returning home.
"This administration is right to continue efforts to solve the border crisis with a new rule to return integrity to the asylum system.," U.S. Rep. Doug Collins (R-Georgia) said in support of the new rule. "Ignoring policy flaws that encourage illegal immigration, abuse of our generous system, and exploiting women and children isn't compassionate."
Immigration analysts and refugee advocates immediately questioned the legality of the new rule and offered alternative, less restrictive, solutions to the growing number of asylum claims.
"We need solutions from the administration, and ones that unite us and won't cause other problems," said Jacinta Ma, policy and advocacy director at the National Immigration Forum. "They are creating incentives to cross illegally or cross with more dangerous methods ... Mexico is not as well equipped as the United States to address this humanitarian crisis."
Mexico's refugee commission is already bursting at its seams, many observers argue.
The country expects to field 60,000 asylum claims in 2019, a nearly 200% increase, according to the United Nations refugee agency, UNHCR, which has called for a coordinated regional response to address the problem.
The UNHCR also issued a statement saying it is "deeply concerned" about the new U.S. rule, arguing it "excessively curtails the right to apply for asylum, significantly raises the burden of proof on asylum seekers beyond the international legal standard, sharply curtails basic rights and freedoms of those who manage to meet it, and is not in line with international obligations."
Groups such as the National Immigration Forum and American Immigration Lawyers Association are championing a combination of short term solutions to relieve pressure at the border, such as hiring more medical personnel, asylum officers and immigration judges, and working on better interagency coordination, coupled with a long term strategy that targets underlying causes of migration from the so-called "Northern Triangle" countries of Guatemala, Honduras, and El Salvador, including corruption, weak institutions, gang violence, economic stagnation and food insecurity. They have also suggested a refugee resettlement initiative for Central America that would allow people in those countries to seek protection without making the physical journey north.
"[The Trump administration] is effectively ending asylum for Central Americans, and this is not in line with the values of our nation. We shouldn't shut the door on people fleeing persecution," Ma said.
In addition to the direct impact on potential asylees from Central America, Customs and Border Patrol is also encountering more migrants from Africa, Haiti, Cuba, and other regions at southern U.S. crossings.
"My concern is this new proposal does away with due process, and there really isn't a chance for someone who passed through Mexico to make a claim," said Matthew Soerens, U.S. director of church mobilization at World Relief, who pointed out that many people fleeing religious persecution in places outside of the Western Hemisphere have traveled through Central America to get to the United States.
"We've worked with many people from Africa who've come through Mexico and been granted asylum in the U.S.," he said. "We believe we can be a compassionate nation and a secure nation. It's not appropriate to let everyone in. We are a nation of laws, but we can also offer due process and treat everyone humanely."
This is one in a series of hurdles the Trump administration has attempted to erect to stem the flow of migrants seeking asylum at the southern border. In June, under the threat of tariffs, the Mexican government agreed to increase internal enforcement to stop Central American migration and also allow migrants to wait on its side of the border while applying for asylum in the United States. Additionally, the "Migrant Protection Protocols" implemented earlier this year have returned roughly 15,000 asylum seekers, mostly from El Salvador, Guatemala, and Honduras, to Mexico to await their court date.
Some migrants who are attempting to enter at official border crossings and submit an asylum claim have been forced to cue in camps and shelters in Mexico. Now, if the new rule is allowed to go into effect, those in line would need to apply in one of the other countries they traveled through first. Under the new rule the United States could also deport people eligible for asylum back to the country from which they fled.
While legal challenges have been promised inside the United States, the leader of at least one Central American country has also begun pushing back on the new policy.
President Donald Trump was scheduled to meet with President Jimmy Morales of Guatemala at the White House on Monday, and the administration said regional security would be on the agenda including a "safe third country" agreement that would codify Guatemala's role in accepting asylum applications from migrants passing through on their way north. Morales postponed the visit Sunday, however, and the Guatemalan government issued a release saying in part:
"The government of the republic reiterates that at no point it considers signing an agreement to convert Guatemala into a safe third country."
The new rule does allow for people who were denied asylum in another country they passed through to apply for protection in the United States, and there are some exceptions for victims of trafficking and torture. While the rule was published Monday and took effect Tuesday, there is a 30-day comment period and it is still possible a court challenge could delay implementation.