The Trump administration has been considering a proposal that would bar additional groups of people from obtaining asylum, according to a draft of the plan obtained by BuzzFeed News.
The regulation would add convicted felons and those who’ve been convicted of reentering the country illegally to the list of people who could be barred from obtaining asylum. That list already includes people who can be removed to another country, those convicted of a “particularly serious crime” in the United States, those who are inadmissible because of terrorist activity, those who failed to quickly apply, and other specific bars laid out in the statute by Congress.
The regulation would be the administration’s latest attempt to tighten the asylum process, and would represent a major attempt to transform the immigration system.
Asylum has become the newest front in the Trump campaign to limit immigration that has included new rulings by Attorney General Jeff Sessions intended to prevent victims of domestic violence and gang violence from claiming asylum. While the approval rate for asylum was the lowest in two decades last year at 33%, the actual number of people gaining asylum rose in fiscal year 2018, reaching more than 14,200, the highest number since 1996.
Under the proposed regulation, which was in the drafting process and could be altered, those convicted of any felony, illegal reentry, harboring an unauthorized immigrant, possession of a controlled substance, use of a false identification, unlawful receipt of public benefits, or other offenses would be ineligible for asylum. The draft regulation would also make it so immigrants who have had their convictions expunged because of their immigration case or due to rehabilitative reasons would still have the conviction count against them.
“This is an extreme expansion of the current criminal bars to asylum. Right now the asylum bars are designed to exclude people that may pose a threat to the U.S. public. This move would be imposing obstacles placed on other immigrants to asylum seekers — a group that we had chosen to exempt,” said Sarah Pierce, an analyst at the Migration Policy Institute.
The administration, in the draft regulation, claims that Congress gave it the ability to add to the groups of people barred from asylum. But experts believe any attempt to add more groups of people would be challenged because Congress already explicitly detailed who was ineligible.
“This will surely be litigated as an exercise of administrative discretion plainly at odds with the intention of Congress in providing a broad basis for asylum seekers, and disqualifying only those who are actual threats,” Pratheepan Gulasekaram, a professor at Santa Clara University School of Law, told BuzzFeed News.
Trump and members of his administration have long complained about the asylum process, claiming that individuals abuse the system to come into the country for long periods of time without a path to status. Trump administration officials have often accused asylum-seekers of entering the country illegally, though claiming asylum at the border is a longstanding right enshrined by US and international law.
The draft regulation would also alter the process at the border: those who are barred from asylum but are able to prove they have a “credible fear” of persecution would be blocked from applying for asylum and would instead be funneled to different, more challenging processes known as “withholding of removal” and the Convention Against Torture. Immigrants face a tougher road at obtaining protections under those processes and even if successful, there would be no pathway to citizenship, unlike asylum.
Currently, those who can prove a “credible fear” of persecution can apply for asylum, which may be granted by an immigration judge after extensive court proceedings.
The potential change in the border process was first reported by Vox on Tuesday.
The administration has considered quickly enacting language from the draft regulation that would allow it to block migrants from requesting asylum if they come from countries whose citizens have been barred from entering the United States by a presidential proclamation as being detrimental to the interests of the country. Such a maneuver was upheld in a Supreme Court ruling upholding Trump’s controversial travel ban.
Trump said last week that an administration order on asylum would be released this week.
“This falls within a larger pattern of the Trump administration’s general hostility of any of migration,” Gulasekaram said. “This suggests it is not about danger, but about a more general hostility toward immigrants.”