Can Trump’s New Asylum Rules Stem the Illegal Tide?

Illegal immigration numbers remain at levels triple that of previous years, and Congress continues to bicker, foot stomp, other otherwise ignore the problem. In the face of this, the Trump Administration released its latest attempt to bring the border crisis under control. 

Under new rules issued last week, migrants will now be required to seek asylum in at least one country they pass through on their way north. In other words, to qualify for asylum in the United States, Hondurans and Salvadorans would first have to apply for—and be denied—asylum in Guatemala or Mexico.

The response from critics was predictable. “These new regulations are illegal and flout our asylum laws,” Senate Minority Leader Chuck Schumer (D-N.Y.) tweeted on Tuesday. In a press release, the ACLU stated that the “Trump Administration is trying to unilaterally reverse our country’s legal and moral commitment to protect those fleeing danger,” right after they vowed to file a lawsuit to fight the change. U.S. Representative Bennie Thompson (D-Miss.) and the chairman of the House Homeland Security Committee, described the regulations as “xenophobic and racist.”

None of them, however, acknowledged a key feature of the new rules: they put the United States in compliance with exactly the way the rest of the world handles the flow of refugees between borders. 

Under international law, the Dublin Regulation stipulates that migrants seeking asylum are required to claim it in the first safe country they enter. The basis of this rule prevents migrants from using the asylum process simply to shop for a preferred destination, because it assumes that if migrants truly are seeking shelter from persecution, they will stop in the first place they find relief.

In practical terms, it can be explained this way:

Passing through another country without seeking asylum undercuts any claim made upon arrival at the U.S. border. For example, a Honduran who claims he was forced to flee due to political persecution has no compelling reason to go further than Mexico. He obviously has no credible reason to fear he will be persecuted by the Mexican government. Thus, ignoring Mexico’s asylum process is prima facie evidence that a claim for asylum in the U.S. is bogus.

If this rule is racist and xenophobic, then so apparently is the prevailing legal standard in Europe. And so is our similar agreement with Canada, which has been in place since 2004.

Why Are These Rules Necessary?
A key feature of this ongoing border crisis is the exploitation of the asylum process by thousands of illegal crossers, which has resulted in a backlog of over 900,000 immigration cases and years of wait time. 

Under federal law, to be granted asylum an alien must prove that he faces persecution, or has a “well-founded fear of persecution,” in his native country “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Migrants claiming asylum are given an initial screen by Customs and Border Patrol agents, but then their claim must be heard by a judge. Given the years-long wait time, migrants are generally released into the country. By the time they show up for their hearing—if they do—many of them have been in the United States for years.

Migrants increasingly have figured out how to make this dysfunctional system work for them. Show up, claim asylum, get released. Come with a child, and the process is further expedited due to federal rules that prevent the detention of children for more than 20 days.

Border interviews confirm that while many migrants are fleeing violence, their primary goal in getting to the United States is economic. Many male migrants say they intend to secure work in the United States to send money back home, and in many cases have family already in the country and jobs lined up. At the same time, many don’t intend to stay in the United States permanently; they plan to work for a time before returning home. 

In other words, these are largely economic migrants using the asylum process—designed to protect people fleeing persecution—to gain entry to the United States to make money. 

Migrants exploiting the system in this way create huge backlogs that prevent true asylees from having the expedited access to necessary relief. But even that definition has been stretched by judges. 

Recent rulings have extended the legal meaning of “persecuted social group” to include “married women in Guatemala who are unable to leave their relationship” and “those likely to be recruited by gangs.”

With such a loose standard and nearly guaranteed release into the country, is it any wonder asylum claims have increased 1,700 percent in the last decade?

Congress Could Change All of This
Democrats are seething with indignation and immigration groups have already sued the administration over the new rule.

As with the furor over the immigration crisis, however, Congress has the power to change the situation.  Congress could change the asylum laws, to make them more restrictive, or more generous. Congress could give Border Patrol and the Department of Health and Human Services more resources to address conditions in the squalid detention facilities. Congress could also beef up enforcement resources to go after the cartels who are reaping billions of dollars from trafficking in drugs and people. 

Instead, the House Democrats spent last week passing a resolution to condemn a tweet, voting to hold Trump Administration officials in contempt, and trying (and failing) to pass a resolution of impeachment. Meanwhile, the Republican majority in the Senate spent last week voting on tax treaties that would largely benefit corporations. 

The same people who vilify the Trump Administration are, through their own inaction, leaving the White House to try and manage a daily overwhelmed and drastically under-resourced southern border.

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Photo credit: iStock/Getty Images

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.