Court Blocks Rule Intended to Eviscerate Right to Seek Asylum

Update:  On January 8, 2021, a federal court issued an injunction blocking the Trump administration’s most sweeping and extreme asylum rule discussed below from taking effect nationwide.

Even should the Trump administration appeal from the injunction before the new administration takes office, it’s possible the incoming Biden administration will move to dismiss the government’s appeal and choose not to defend the new rule.

On December 11, 2020, the Trump administration finalized proposed regulations, slated to take effect on January 11, 2021,  eviscerating the right of those fleeing persecution to have a fair chance to request asylum in the U.S. that Congress had guaranteed 40 years previously.

That law, the Refugee Act of 1980, codified the United State’s obligation to provide those who make it to the U.S. fearing harm or death in their home countries based on their race, religion, nationality, social group, or political opinion with a fair opportunity to seek asylum. The U.S. committed to this obligation in 1968 when it acceded to an international treaty crafted in response to the lessons of World War II.

Since 2017, the Trump administration has waged a virtual war against refugees and asylum seekers.   It has slashed refugee resettlement to the lowest levels since 1980, and raised unprecedented barriers to applying for asylum.  Those include forcing asylum seekers to choose between being reunited with their children or pursuing their asylum claims, compelling them to wait in dangerous conditions in Mexico for their hearings in U.S. immigration courts, using the pandemic as an excuse to not allow them to ask for asylum at all,  and other previously unheard of and draconian policies.

The new final rules continue the assault, both by categorically disqualifying certain grounds for seeking asylum, and by making people ineligible for asylum for reasons unrelated to their claims.  For example, the new rules would generally, with few or no exceptions, deny asylum to any asylum seeker:

  • who has a gender-based claim (including persecution for sexual orientation, gender identity, or domestic violence by actors the state is unwilling/unable to control);
  • who has a claim based on persecution by gangs, criminal organizations, guerillas, or terrorist groups;
  • who transited through more than one country on her/his way to the U.S.;
  • who spent more than 14 days in another country on her/his way to the U.S.;
  • who tried to enter, or entered the U.S. without permission;
  • who entered via the southern border and passed through another country on the way to the U.S.;
  • who lived in a third country for a year or more, even if the person had no possibility of staying legally in that country; and
  • who shows symptoms of, or has recently been exposed to someone with the symptoms of,  a communicable disease that has triggered a public health emergency (such as COVID-19), or who has come from or through a country where our government has determined that a communicable disease is “prevalent or epidemic.”

These are just a fraction of the extensive provisions that the new rules create to prevent asylum seekers from having  a fair chance to seek protection in the U.S.,  and that are completely contrary to the asylum rights created in statute by Congress.

The rules are all slated to take effect in January 2020.  Litigation challenging the new rules is already underway.

The rules are so extreme that it’s likely that the federal courts will block them from taking effect.   The Biden administration also could choose not to defend the new rules in court, or could decide not to appeal should the federal courts strike them down.   Should the new rules somehow survive court review, the new administration would have to go through formal rule making to reverse them, a process that could take at least a year.