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As soon as this week, the Trump administration is expected to issue a new asylum policy — ostensibly in response to the migrant “caravan” — that could have the effect of barring people who enter the US between ports of entry from asylum.
The policy has been developed hastily over the past couple of weeks, primarily by the Department of Justice. Details of what the Trump administration plans to roll out in the coming days are still unknown.
But even before the caravan left Honduras, the DOJ was in the late stages of developing a plan, via regulation, that would bar people from getting asylum if they were covered by a presidential proclamation — like the travel ban — suspending their entry into the US.
Under the earlier plan, anyone covered by such a proclamation who expressed a fear of persecution would be moved into a special alternative to the asylum process. They would be subjected to a higher standard to stay in the US than asylum seekers face, and even if they met that standard, they would be ineligible for permanent legal status.
That plan could also allow the government to try parents and children independently — rather than granting protections to entire families — and make it easier for the government to keep asylum seekers in immigration detention without bond for the months it took to process their cases.
It’s not clear whether the asylum policy currently under development is based on the version Vox has seen, or whether the Justice Department has found a different regulatory path to a similar goal.
The plan under consideration in early October certainly didn’t address everything the administration has signaled it wants to change about asylum policy — it doesn’t, for example, change the “credible fear” standard for asylum screening interviews, which Trump and administration officials complain lets far too many people stay in the US.
But the October regulatory draft, which Vox has seen a copy of, shows that even before the caravan, the Trump administration was seeking to expand executive authority — and aggressively use existing regulatory powers — to restrict asylum, while creating a workaround to satisfy its obligations under international refugee law.
The pre-caravan plan: a standard regulation proposal. The post-caravan plan: an emergency rule.
In the fall 2018 “Unified Regulatory Agenda” — in which agencies across the federal government announce which regulations they’re planning to work on over the next six months — the Department of Justice announced it intended to propose a regulation in December 2018 to change the “Procedures for Asylum.”
That regulation was in fact already under development, under the joint authority of DOJ and the Department of Homeland Security. Vox has seen a late-stage draft of the proposed regulation, and has spoken to others who have seen a separate draft with identical content. (Many of the changes proposed in this draft were also included in a sweeping asylum proposal Vox reported on exclusively in June. However, the October version of the regulation doesn’t include any of the radical provisions we wrote about from the June draft, such as directing asylum officers to consider it a strong negative factor if someone had traveled through Mexico before seeking asylum in the US.)
The October draft was designed as a standard regulation, which would take months after first being published to go into effect. But the mounting frustration from the White House as more and more families have continued to cross the US-Mexico border to seek asylum — brought to a boil by President Trump’s caravan obsession — has forced the administration to come up with faster-acting plans.
As Tal Kopan reported for the San Francisco Chronicle on October 25, the administration is considering a two-step plan to restrict asylum. First, it would issue a regulation to go into effect immediately — known as an “interim final rule.” Second, Trump would issue a new proclamation under the Immigration and Nationality Act to apply the consequences of the new regulation to a particular group of migrants — which could be as broad as all asylum seekers entering the US between official border crossings.
Presidential bans don’t necessarily keep you from seeking asylum. Jeff Sessions could change that.
When people enter the US and say they have a fear of persecution, federal law generally treats them as eligible for asylum until proven otherwise.
There are specific bars to asylum eligibility, like having committed a “particularly serious crime” or being a threat to the security of the United States. Everyone who doesn’t trigger one of the bars, though, is eligible if they can back up their asylum claim, regardless of how they entered the US.
And it might also be true of people whose entry is technically “suspended” under a proclamation, because being subject to a proclamation isn’t explicitly one of the bars.
The Trump administration avoided this pitfall with the travel bans — the version upheld by the Supreme Court in 2018 explicitly said, “Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum.” But asylum law allows the attorney general to establish additional asylum bars. And the version being considered in early October would have done just that.
Under that draft regulation, unless the president explicitly exempted asylum seekers from his proclamation — as the travel ban did — entering the US under a proclamation that sought to ban you would make you automatically ineligible for asylum, too.
But that raises the question of what would happen to you instead.
The alternative to asylum: a process with fewer options and a higher burden of proof
Right now, being barred from asylum doesn’t actually stop you from applying. Asylum bars are only considered at the end of the process — after an entrant has presented herself for asylum, gone through a screening interview with an asylum officer to determine if she has a “credible fear” of persecution, and waited the months or years for her case to be heard by a judge.
The draft regulation seen by Vox would change that process. Instead, the asylum officer would consider, as part of the interview, whether the asylum seeker triggered any of the bars. If she did — even if she otherwise passed the screening — she’d be docketed for a limited court proceeding called “withholding only.”
In a typical asylum hearing, a judge will consider several options for an asylum seeker to stay in the US. One is asylum itself, which allows an immigrant full legal status and a much faster road to a green card (and therefore to citizenship) than most immigrants get. There’s also “withholding of removal,” where asylum seekers face a higher burden of proof to provide evidence that they will be persecuted if they return to the country they left, but have fewer restrictions on eligibility. The US also allows people to have their deportation withheld or deferred under the United Nations Convention Against Torture — which requires them to show that there’s a likelihood they’d be tortured if returned.
Both withholding of removal and Convention Against Torture protections are much rarer than asylum. That’s because they’re essentially backstops to make sure the US is fulfilling its obligations under international law. Convention Against Torture protections are designed to fulfill the Convention Against Torture (obviously); withholding of removal is designed to fulfill the US’s obligation of non-refoulement, which prevents the US from returning anyone to a country where their life would be in danger.
That’s why, unlike asylum, withholding from removal and CAT protections don’t grant a pathway to permanent legal status. And they can be revoked if the US decides an immigrant’s home country has become safe for return. They’re contingent statuses: The US can’t force you back, but it doesn’t have to fully take you in.
In a “withholding only” proceeding, asylum wouldn’t be on the table — only the lesser options, with the higher burden of proof and without the path to permanent status.
This change might have extra consequences for families. While children are given asylum if their parent gets it, families can’t qualify together for withholding of removal — they have to qualify separately. And because the courts are split on whether people in withholding-only proceedings are eligible for bond, it might be easier to keep asylum seekers in detention.
This is what the administration was already planning to do — even before the caravan — to asylum seekers covered under future 212(f)-based proclamations. If the October-drafted regulation had gone into effect (probably in mid-2019) in its current form, all it would take would be a proclamation to trigger it: to redirect some swath of asylum seekers into the more limited court proceedings.
Any asylum change is liable to get shot down in court. The point is to start acting on it.
We don’t entirely know if the government is planning to use withholding-only proceedings as a safety valve for people ineligible for asylum. We don’t know if they’ll put additional restrictions on Central American asylum seekers beyond what they were contemplating in the pre-emergency draft.
The combination of ‘a presidential ban is an asylum bar’ and ‘people barred from asylum go to withholding-only proceedings instead’ doesn’t address the Trump administration’s frustration with the credible fear standard in initial interviews. (There are reports that the forthcoming policy would raise that standard to the “reasonable fear” standard required for people with past deportations to apply for withholding of removal — though it’s not exactly clear how that could be done via regulation.)
It wouldn’t get around the government’s existing legal obligations to keep families together and not to detain children for too long — but the government could get around that with a “binary choice” policy that would force parents to choose between being detained together and being separated. And it wouldn’t solve the Trump administration’s problem of limited capacity to detain families — but the administration appears to be moving forward with plans to house families at military bases.
Most importantly, we don’t know what precisely the scope of the presidential proclamation — the second step — will be.
It’s practically guaranteed that any policy that bars asylum to people who enter the US illegally — i.e., between ports of entry — is going to be challenged by advocates for violating the clause of the Immigration and Nationality Act that says that someone may apply for asylum “whether or not” she entered the US “at a designated port of arrival.”
It might also be challenged for violating the US’s obligations under international law (although that argument might be harder to make if asylum seekers are eligible for withholding of removal). And the “interim final rule” is almost certainly going to be challenged under the Administrative Procedure Act, by advocates who don’t believe that the caravan (or the broader trend of families seeking asylum in the US) is an emergency requiring such a drastic response.
If the administration’s primary concern were whether a policy would hold up in court, though, it wouldn’t be scrambling to act so quickly.
The scramble does, however, reflect that the administration isn’t content to start flatly violating existing law and procedure simply on Trump’s say-so. The strategy right now appears to be a higher-pressure version of the strategy reflected in the Justice Department’s earlier drafts of asylum regulations: to find the soft parts of the immigration system, where the executive branch is granted the most deference, and push them as far as possible until stopped.
