Trump Proposes to Gut U.S. Asylum System [Opinion]

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Emma Lazarus’ words which adorn the Statue of Liberty in New York Harbor have long been a beacon of hope to those persecuted and marginalized around the world who travel to the United States in hope of a better life.  Unless you live in Trump’s America.   Time and time again this administration has done everything to change regulations, undercut previously-interpreted case law, and provide impossible standards by which to obtain lawful status, all in an effort to impede lawful immigration.

See our page on Removal and Asylum

The Trump Administration’s latest folly is an overt and devastating attack on asylees in America.  An asylee  is an individual who is physically present in the United States and has a well-founded fear of persecution in his or her home country or country of last habitual residence on account of one of five protected grounds- race, nationality, religion, political opinion, or membership in a particular social group.  Just yesterday the Trump administration has published regulation changes into the Federal Register to completely undermine and all but eliminate the ability to seek asylum in the United States.

As quoted by CNN, Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, criticized the proposal, saying, “The goal of this asylum regulation — far from reshaping the system to improve it — is to make asylum impossible to win.”

To outline a few of the proposed regulation changes, asylum would now:

• Be banned for individuals who spent at least 14 days traveling through another country without applying for asylum in that country;
• Those who have been in the United States without prior authorization or who have worked without authorization, with no exception;
• As well as anyone who traveled through a third country and didn’t fly directly into the United States.

Additionally, the proposed changes redefine what it means to be a “member in a particular social group and have a political opinion”, an essential portion of an asylum application if the person is seeking asylum.  Make no mistake, this is a direct and overt attack on immigrants and asylees, and, in my opinion, is unconstitutional as it exceeds executive authority.

American democracy was founded by the ideals of separation of powers and checks and balances.  That is, not one branch of government is superior or stronger than another.  All who attend public schools in the U.S. are taught these ideals from elementary school.

The Legislative branch (Congress- the Senate and House of Representatives) writes the laws, the Judiciary branch (Supreme Court and lower courts) interpret the laws, and the Executive branch (President and Cabinet members/departments) enforce the laws.

In the context of asylum law, the U.S. Congress writes a bill, which is then voted on by members of the House and Senate to be passed by a majority.  The president in office at the time the bill is passed can either sign the bill into law, or veto it.  Once the law is signed by the president, it is controlling law.

Sometimes, laws put in place by Congress are unclear, or there are multiple ways to interpret it.  It then becomes the role of the Judicial branch to interpret the law, looking at, Congressional intent, how the law is applied to real life situations, and if the law is in violation of the Constitution.  It is simply the role of the Executive branch to ensure the laws put in place by Congress are followed and obeyed.  It is the enforcement branch of U.S. government.  While the Executive branch may have a certain agenda or law it wishes to enact, it is usually done through successful lobbying of Congress, to have members of the House or Senate write and sponsor the bill that the President would then sign.  The President of the United States does NOT have the authority to write bills or change current laws on the books.

The Trump Administration, time and time again in the past 3.5 years has done everything in its power to undermine immigration laws put in place by Congress, and to change the rules of the game, tipping the balance.  It is true that as a part of its enforcement authority, the Executive branch can set rules and regulations as to how various agencies of its charge will enact the law and ensure it is being followed.  However, that regulation authority does not allow the President or any member of his cabinet a blank check to rewrite the laws put in place or interpret them in a way to deny an immigration benefit like asylum to the masses. –as stated above, writing the laws is the responsibility of Congress; interpreting the laws is the jurisdiction of the U.S. court system.

This is not the first time the Trump Administration has misinterpreted and exceeded its immigration authority.  The Muslim Travel bans Trump attempted to initiate in early 2017 were struck down by federal courts repeatedly until he issued a much more watered down one with many exceptions.  His decisions to terminate Temporary Protected Status, TPS, for many nations around the world have been enjoined by federal courts and litigation is ongoing to this day.  His other efforts to prevent those from seeking asylum through the southern border with Mexico is also being litigated and fought through our federal courts.

The proposed asylum regulation changes, if they are allowed to go into effect, will likely meet the same fate.  There are many organizations in the U.S. who fight for the rights of asylum seekers around the country, who will not accept this blatant attempt to completely dismantle the asylum system put in place in this country for generations.

The proposed asylum regulations as set forth will likely be enjoined—temporarily blocked—by a federal court, after which it will likely take years for the lawsuit to work its way through the court system.

Effects of these proposed regulations and enjoinment will cost U.S. taxpayers millions of dollars while devastating the lives of asylum seekers, sending many back to their home countries where they will be killed.

This is not what our founding fathers envisioned when they drafted the Constitution, putting into place these checks and balances to ensure that not one branch of government would become more powerful than the others.  As a staunch proponent for smart immigration reform,  I will continue to fight and advocate for the rights of my asylum-seeking clients and all other clients for justice to be upheld in our country.