Immigration Law

Trump administration will deny asylum to immigrants who cross the border outside ports of entry

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Updated: The Trump administration plans to deny asylum to certain immigrants who cross the border illegally under an interim rule change set to be published in the Federal Register on Friday.

The rule change will be accompanied by a presidential proclamation to deny asylum to people who don’t come to the United States legally through a port of entry, according to reports on Thursday by the Washington Post, the New York Times, the Wall Street Journal and Politico. The stories were based on information provided in a call with reporters.

On Friday, President Donald Trump signed the proclamation that said the new policy applied to people entering the country along the Southern border.

“Asylum is a discretionary benefit,” the interim rule asserts. The rule refers to “large caravans of thousands of aliens, primarily from Central America” who are making their way to the United States with the apparent intent to apply for asylum.

In a ruling in June, then-Attorney General Jeff Sessions said that immigrants generally are not eligible for asylum as a result of domestic violence and gang violence in their home countries. Rather, the violence must be perpetrated by governmental actors, Sessions said.

Ports of entry are so crowded that U.S. customs officers restrict the number of people allowed to enter the entry lanes in a practice known as “metering,” according to the Washington Post. Some people are waiting for days at the ports of entry, which is likely to spur more people to try to cross the border illegally.

Those immigrants who find themselves barred from asylum under the new policy can still ask for a “statutory withholding of removal” using different procedures, provided that they establish a reasonable fear of persecution or torture, according to the interim rule. The procedures would keep the United States in compliance with international treaty obligations, the rule says.

Under current procedures, immigrants asserting an asylum claim are screened by an asylum officer. If the officer finds the immigrant has a credible fear of persecution in their home country, the immigrant is given a court date for the claim to be considered. In fiscal 2018, about 89 percent of cases resulted in credible fear determinations, but “significant proportions” of those immigrants never file an asylum application or are ordered to be removed without a court appearance, the rule says.

Among those criticizing the new plan is Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project. “U.S. law specifically allows individuals to apply for asylum whether or not they are at a port of entry,” he said in a statement. “It is illegal to circumvent that by agency or presidential decree.”

On Friday, three groups filed a lawsuit challenging the asylum proclamation, according to a press release. The plaintiffs are the ACLU, the Southern Poverty Law Center and the Center for Constitutional Rights.

The suit, filed in federal court in San Francisco, alleges violations of the Immigration and Nationality Act as well as the Administrative Procedure Act.

The case is East Bay Sanctuary Covenant v. Trump.

Story updated on Nov. 9 to add information about the proclamation and the lawsuit.

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