President Donald Trump’s Justice Department on Thursday issued a new asylum rule requiring migrants to declare asylum only at legal ports-of-entry.
The legality of the order is being challenged by experts and rights groups that point to standing federal law which states individuals can apply for asylum at any time within a year of entering the United States.
“U.S. law specifically allows individuals to apply for asylum whether or not they are at a port of entry. It is illegal to circumvent that by agency or presidential decree,” Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, told PBS.
FACT: US law specifically allows individuals to apply for asylum whether or not they are at a port of entry.
It is illegal to circumvent that — by agency or presidential decree. https://t.co/vVRdFEQ1qX
— ACLU (@ACLU) November 8, 2018
Other rights activists have raised concerns that the Trump administration’s new asylum rules may also violate international treaties.
The 1967 Protocol Relating to the Status of Refugees, an international treaty signed by the United States, states participating nations cannot deny people fleeing persecution the opportunity to apply for asylum.
“U.S. and international law does not specify that you have to go to a certain port,” Bill Hing, a lawyer at the Immigrant Legal Resource Center, told Newsweek on Thursday.
The Trump administration maintains that the order is designed to promote efficiency in the asylum process, noting an uptick in asylum claims in recent years.
“We’ve gone from 5,000 credible fear interviews in 2008, and 97,000 in 2018,” senior administration officials told reporters on a conference call Thursday. “The vast majority of these applications eventually turn out to be non-meritorious.”
DOJ and DHS Issue New Asylum Rule https://t.co/5O26DCt0VH
— Justice Department (@TheJusticeDept) November 8, 2018
Critics argue that the administration is essentially prejudging the future asylum claims of migrants.
Ahead of the midterm elections, Trump ramped up his anti-immigration rhetoric, saying the U.S. was on the verge of an “invasion” from the migrant caravan making its way through Mexico.
Just days before the elections, the president also the shared a controversial anti-immigrant ad that was condemned by many as racist.
“My administration is finalizing a plan to end the rampant abuse of our asylum system,” Trump said on November 1.“Under this plan, illegal aliens will no longer get a free pass into our country by lodging meritless claims in seeking asylum,”
Other potentially relevant international treaties include the 1969 American Convention on Human Rights, which gave protections to those seeking asylum in one of its articles.
Additionally, the Refugee Act of 1980 states that it is “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.”
The new asylum rules are a stunningly transparent effort to end-run the plain text of 8 U.S.C. § 1158(a), under which individuals can seek asylum even if they're undocumented and don't present at a port of entry.
Folks may not _like_ that law, but this isn't how to change it… pic.twitter.com/rfG6cEydC5
— Steve Vladeck (@steve_vladeck) November 8, 2018
Bryan Bowman contributed reporting to this piece