The Trump administration enacted a rule on Monday that requires asylum seekers to first apply for asylum in another country before being able to make a case in the United States — a step that legal experts say is a flagrant violation of domestic and international law.
The “third safe country” rule is designed to deter asylum seekers and ease the burden of immigration courts, which currently face a backlog of hundreds of thousands of cases. In fact, the immigration court backlog recently reached a 10-year high, according to the Marshall Project, with some people having to wait years for a hearing. The expansion of immigrant detention systems, in conjunction with the administration’s “zero tolerance policy,” has combined to create a crisis at the country’s border.
“This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” Attorney General William P. Barr said in a statement. “The United States is a generous country, but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.”
Legal experts and human rights advocates, however, say the new rule violates domestic law by circumventing the legal authority of Congress and international law by abdicating the Geneva Convention, which requires members of the United Nations to provide safe haven to asylum seekers. The new rule, they argue, will endanger the lives of thousands of people who are desperately seeking safety for their families.
The US House of Representatives and Senate have historically controlled the basic legal structure of the US immigration and asylum system, while the executive branch has determined how to enforce existing laws. The new rule, according to legal experts, seeks to override Congress’ mandate.
“President Trump is trying to end asylum, full stop,” said Eleanor Acer, Human Rights First’s senior director of refugee protection, in a statement. “Once again, the Trump administration is attempting to rewrite laws passed by Congress to protect refugees from return[ing] to persecution.”
“This is yet another move to turn refugees with well-founded fears of persecution back to places where their lives are in danger — in fact, the rule would deny asylum to refugees who do not apply for asylum in countries where they are in peril,” she added. “The president can’t stand the fact that seeking protection in the United States is legal, so he’s doing everything he can to make the asylum process as difficult as possible.”
Since 2000, the US has denied more asylum applications than it has approved every single year. The Trump administration has overseen a sharp rise in asylum denials, while at the same time drastically limiting the number of refugees allowed in the country.
In recent years, the US has received an influx of asylum seekers from countries in the “Northern Triangle” of Central America — El Salvador, Guatemala, Honduras — who are fleeing gang violence, state persecution, climate change, and extreme poverty.
After arriving at the US border, however, many have been turned away, denied entry, or detained in facilities that have been criticized for enabling human rights abuses.
“We understand that the US asylum system is under significant strain. And we are ready to play a constructive role if needed in helping alleviate this strain,” Filippo Grandi, UN high commissioner for refugees, said in a statement.
“But we are deeply concerned about this measure,” he added. “It will put vulnerable families at risk. It will undermine efforts by countries across the region to devise the coherent, collective responses that are needed. This measure is severe and is not the best way forward.”
The Trump administration argues that the rule, which will apply to all future asylum seekers, is legally sound and will help to lower migration levels and shift the burden of helping asylum seekers to other countries in the region.
Other countries in the region, however, have long opposed this approach and Mexico, which has recently stepped up enforcement against asylum seekers, urged the US to reconsider, according to Time. Human rights groups, meanwhile, argue that this arrangement will likely lead to asylum seekers simply being sent back to their countries of origin, from which they fled.
“The Trump administration’s latest attack on asylum seekers is reprehensible,” said Aaron C. Morris, executive director of LGBTQ immigrant rights organization Immigration Equality. “It is their most blatant attempt so far to dismantle the asylum system altogether in clear violation of domestic and international law.
“LGBTQ people have remarkably strong asylum cases due to the high risk of persecution in their countries of origin,” Morris said. “Denying them the chance to apply for protection in the United States will lead to senseless and avoidable violence and death.”