Everything about the plan of the Trump government, the asylum for people who come from the US to Mexico, without radical restrictions – the prohibition of adults and families who cross between entrance ports (official border crossings) – to prevent the entry into the asylum process , has developed rapidly.
Politics itself was developed in recent weeks when a slow-moving resource crisis on the US-Mexico border became a hot political issue due to President Donald Trump's obsession with the "caravan" of migrants.
It was released on Thursday evening and Friday morning, less than a day before its entry into force. (As late as last Friday, some asylum officials had not been given guidance on how to implement the new directive.)
And on Friday night, late afternoon politics had been challenged by the ACLU and other immigration lawyers in court, who hope the northern district of California can put the policy on hold even before it takes effect on Friday at midnight.
It has moved so fast – at a time when many other news headlines – that other Trump's signature policies were not alerting them to immigration. But it is just as important.
Hundreds of people come to the US daily between ports of entry and seek asylum. Anyone who arrives at the border while this policy is in force – it should last 90 days, but could later be extended or extended – will be forced to wait for weeks or longer in overloaded ports of entry and take an immediate risk of being deported by illegal means Crossing and handing over to Border Patrol. Illegal crossings between ports of entry could give them a chance to stay in the US, but this opportunity will be much further away and with far fewer privileges than the asylum seekers currently.
It is another escalation of the Trump government's months-long war on the southern border asylum system. However, it's far more legal than anything the government has done so far – even the travel ban.
Regardless of whether the policy goes into effect on Friday night or not, the fight continues. As long as people continue to seek asylum in the US in large numbers, the Trump government will try to stop them – and as long as the government tries to stop them, there will be human rights concerns about whether the US will honor its commitments to protect fleeing people from harm ,
1) What did the Trump administration do?
Under US law, undocumented persons may apply for asylum. If they prove that they are subject to persecution in their homeland (race, nationality, religion, political opinion or membership of a particular social group), they should give it to them.
If this is not the case, they are subject to certain restrictions. The Trump administration pursued a two-part strategy to remove such a restriction.
On Thursday, the Trump administration published the text of a decree (officially published on Friday in the Federal Register) which added a restriction on persons subject to the President's entry ban, such as Trump's "travel ban", which will be signed in 2017 has been. It also set out a procedure on how the asylum procedure could change for persons subject to such a ban.
The regulation came into force immediately and broke the traditional, months-long regulatory process. Then, on Friday morning, Trump signed an entry ban for people entering Mexico from ports of entry to the United States.
The combined effect of the two parts is that anyone who commits entry between ports of entry between midnight and midnight on 8 February 2019 and thus disregards abusive entry, does not apply for asylum. Instead, they are subject to an alternative procedure established by the regulation and are a model for asylum seekers convicted of serious crimes in the United States.
2) How did someone who went to the United States without papers receive asylum before this directive came into force?
A person who enters the United States without papers – either in a port of entry or otherwise – is immediately deported without a judicial hearing, unless she says she wants to apply for asylum or is afraid of persecution in her home country. In these cases she is entitled to an interview with an asylum official.
If the asylum official finds she has a "credible fear" of persecution (in other words, there is a significant possibility that she will be persecuted if she is deported for reasons of race, nationality, religion, political opinion or membership in a country becomes a particular social group), he or she may appeal to an immigration judge in the same lawsuit as unjustified immigrants arrested while in the United States. There she can apply for asylum. In the meantime, since the immigration court hearings take months or years, they can legally work and live in the US.
Even if she is persecuted, she may still not be entitled to asylum if, for example, she has a criminal record in the US or in her home country. However, the judge will wait until the end of the trial to make that judgment. If she is not entitled to asylum but still has some cause for fear of persecution, she may receive a lesser form of protection – restraint of distance – that allows her to reside in the US, but does not allow a permanent legal status.
3) How does the process under the new Trump Directive work?
Those entering Mexico from Mexico without papers are still entitled to an interview with an Asylum Officer. However, the asylum officer does not need to look for a credible fear of persecution, but for a "reasonable" fear – a higher standard that requires not only substantial prosecution, but also the determination that persecution is more likely than not.
The standard of "reasonable fear" is rarely used under the status quo – for immigrants who have already been deported and returned to the US, as well as immigrants who have committed serious crimes. The difference in the pass rates, however, is noticeable. In credible interviews about 75 percent of all asylum seekers exist. In reasonable anxiety interviews, it is just over 25 percent. Even assuming that many asylum seekers currently subject to the credible standard of fear would surpass the stricter ones, there are still thousands of immigrants who fail their screening interviews every month and are forcibly deported.
People who fail the legitimate fear test will be temporarily deported (unless they decide that a judge will review the finding). People who pass the reasonable fear test are admitted to an immigration judge. But even then they would still not be suitable for asylum. Their only choice would be deportation and protection under the Convention Against Torture.
This will allow the US to comply with its obligations under international law – which will not enable countries in which its lives are at risk – but it will not give people access to a permanent legal status.
Families can not go through the system together. While a mother can receive asylum for her child when her own case is approved, the mother and child must individually prove that they are eligible for other protective measures. (This Vox article contains more details about the difference between asylum and the lower forms of protection.)
4) What problem are you trying to solve?
Asylum seekers account for an increasing proportion of people from Mexico who come to the United States. And the Trump administration is convinced that most try to play the system.
While in recent years far fewer undocumented immigrants have entered the United States than in the past, the people who come in here are no longer the same kind of migrants the United States has seen in the last decades of the highest unauthorized migration. They are more likely to come from Central America (especially Guatemala, Honduras and El Salvador) than Mexico. They are more likely to be families or children than single adults. And most importantly, they increasingly say they fear deportation in their home country – and pass their credibility checks.
Even though the number of people who (at least temporarily) come to the US by passing their credible fear tests is steadily rising, the number of people who ultimately receive asylum in these cases has not risen at all. In essence, the trend of recent years is an increase in the number of people starting the asylum process but failing to cut or simply disappearing.
This demolition occurs at every stage of the process. For example, fewer than 40 percent of those who passed the first asylum interview submit a written asylum application. This is a necessary step in the process, even though they passed the interview and were given a trial.
In particular, asylum seekers appear to have problems appearing in court, meaning that they are ordered in absentia. In fact, the biggest determinant of whether a family receives a deportation order appears to be whether they appear in court.
There are many reasons why families might miss their court data. For example, a 2018 study by the Catholic Legal Immigration Network and the Asylum Seekers Advocacy Project provided evidence that families were trying to keep track of their court appointments, but bureaucratic and structural issues – from inattentive solicitors to trouble hearing in the judicial authority to relocate correct situation – bothered
However, the Trump government sees the discouraging rate as evidence that people are using credible fear screening to come to the country on the basis of asylum applications that are either fraudulent or do not show persecution that meets the legal requirements for asylum to sneak in.
The administration is convinced that asylum seekers are not simply lost in the system – they disappear deliberately because they know their applications will not be approved if they continue to seek asylum. Trump has accused smugglers of training asylum seekers to say the "magical words" they bring to the country. A senior government official described the stifling asylum system as "the biggest gap in the world" last month and said it was affected by "systemic fraud" – indicating the low approval rate as evidence that most asylum applications are not only inadequate, but vicious.
5) Why is this happening now?
It would be difficult to imagine that this policy would have been enforced if Trump and his government had not spent the few weeks before the election campaign in which the caravan was freaked out by several thousand asylum seekers moving slowly through Honduras, Guatemala and southern Mexico.
To be honest, the administration has been worried about the growing number of cross-border commuters for over a year now. An attempt was made to combat this with a spring action that led to a widespread separation of frontier workers in the family – but the crossings did not fall while the separation of the family was in effect and they rose steeply afterwards. (The Trump administration believes that ending the family separation policy encouraged families to come, though this is difficult to prove.) However, the caravan caught Trump's attention and put the administration in crisis.
However, when the Trump administration revealed the new policy, the leaders of the caravan announced that they were leaving Mexico City for Tijuana and applied for asylum at San Ysidro asylum. In other words, unless some members withdraw, the caravan is not even subject to the new directive, as they do not cross between ports of entry.
Instead, the Trump administration argues that this policy is needed immediately because the US system is simply overwhelmed. And that is definitely true. The disagreement is whose fault it is.
The US has developed a border policy aimed at maximizing the efficient arrest and deportation of anyone who crosses the border illegally and is not caught. It is not intended to facilitate the processing of asylum seekers – especially families.
Entry ports are already overwhelmed by asylum seekers; In most ports, asylum seekers have to wait on the Mexican side of the border, sometimes for weeks, before customs and border guards allow them to enter the US and claim their right to asylum. Border patrols (for those arrested between the ports of entry) no longer have asylum seekers.
Much of the "Refugee Corps" – officials of US citizenship and immigration authorities responsible for interviewing refugees around the world who are seeking to resettle in the US – is extensively involved in conducting asylum interviews imprisoned cross-border commuters. Immigration and Customs Enforcement claims it is so overwhelmed by families coming to the US that they simply have to be released at bus stops instead of working with non-profit organizations to orient families and take them to where they need to continue their asylum case ,
Some government officials accuse asylum seekers of deliberately attempting to sabotage the system. Others blame Congress for failing to give DHS the money it needs. Immigration advocates accuse the government of saying they are either unwilling to provide the resources needed to speed up the processing of asylum seekers, especially in the ports of entry, or they are actively seeking to discourage people from their statutory asylum rights.
6) Does it work?
That's hard to answer, because it's hard to say exactly what the Trump administration expects from this plan – if it's allowed to come into force, that's a big problem.
The US wants to be able to reject all asylum seekers coming through Mexico – but Mexico does not agree to that within 90 days. The explicit goal of the 90-day ban – the one thing that would cause Trump to cancel it before the 90-day deadline – would be for Mexico to sign an agreement with the US on safe third countries. That would allow the US to turn everything back Asylum seekers who had traveled through Mexico. (The US currently has such an agreement with Canada.)
An agreement with safe third countries would essentially bring about the current migration in Central America, which has brought hundreds of thousands of people from Guatemala, Honduras and El Salvador to the US and Mexico to seek asylum in recent years, solving for Mexico alone , Mexico, whose new president will serve on 1 December, has so far shown no interest in signing such an agreement.
The Trump administration says it is trying to encourage people to go to the ports of entry – but they are already secure. A senior government official told the press Tuesday that "we're trying to get asylum applications through the ports of entry where we have better resources, better skills and better manpower and staff."
That's really not true. The entry ports were already overwhelmed with asylum seekers before the border guards between the ports of entry. It's hard to imagine how the ports of entry can accommodate more Asylum seekers, if they can not accommodate those who are coming, and are not in the ports of entry, pending the new plan to come into force.
The Trump administration will probably be able to deport more people faster – but it's not really clear how many More. Theoretically, raising a credible standard of anxiety would mean that 75 percent of asylum seekers would meet a reasonable standard of anxiety, which only 25 percent of asylum seekers would insist would result in thousands of people refusing their examinations a month – and eligible for deportation. But perhaps the penetration rate for reasonable anxiety is low because of the people who are now subject to this standard There are fewer compelling cases than people fleeing gang violence and state indifference in Honduras.
How this will work depends heavily on the implementation, right down to the individual asylum officers. It is possible that just about anyone who was previously allowed to stay in the US and apply for asylum will be able to stay in the US after that (and seek less protection). It is not likely. Some people will fall through the cracks between the old and the new standard; It's just a question of how many.
7) Is this legal?
There is a reason that the first action against the directive was filed less than 6 hours after the signing of the proclamation. Even for the Trump administration, this policy is a bold claim by the executive to restrict immigration to the United States.
While the foundations of asylum law are a matter of international law, this is not the biggest legal obstacle for the Trump administration. By allowing people to stay in the US under a ban on deportation or protection under the Convention Against Torture, the US has a legal obligation not to return people to countries where their lives are in danger.
The problem is US law.
The text of the Immigration and Nationality Law stipulates that individuals can apply for asylum "whether or not they enter the US at a port of entry". The Trump administration is preparing this "or not" basically dead letter – at least as long as the proclamation is in force.
The administration argues that the law also gives the attorney the general power to set asylum restrictions and that the president has full authority to suspend entry (an interpretation encouraged by the Supreme Court ruling in the event of a travel ban in June .t do indeed specify any limits to this performance).
The ACLU and the other lawyers and providers of immigration services who have sued the directive disagree. They argue that this is not just a margin of discretion to fill a gap that Congress has not addressed, but to override a specific thing that Congress has written into law – which the administration can not.
In addition, they argue that the path The policy was rolled out – by issuing a regulation that came into force immediately – it violates the Administrative Procedure Act. There is a high bar to skip the regulatory review process. The ACLU argues that the administration has not clarified it.
A federal judge will agree with the ACLU and take action against the administration – that's almost certain. (The ACLU was filed in the northern district of California, which is not a friendly turf for Trump.) The only question is whether this happens before midnight or after.
Of course, the Trump administration will appeal against any decision. The case may end within a few days at the Supreme Court, or it may take several months or more, but it is almost certain that it will end there, just like any other legal battle over Trump's immigration.
According to Julia Ainsley of NBC, the government believes it will prevail with the new Conservative majority in the Supreme Court. It may be true (though the administration may not be able to count on some Conservatives of the Tribunal to support the executive over the Congress).
Politically, a ruling against the government could give both sides what they want – Trump and Company could rant against liberal judges, and the ACLU could demand another victory against Trump.
Regardless of whether or not this policy enters into force, the concern of the Trump administration for undocumented immigration to the United States is not worrisome. It will not solve the resource crisis at the border. To the extent that the Trump government has committed itself to reducing the number of asylum applications in the US by all means necessary, this is only one front in a multi-frontal battle.