The Trump administration on Wednesday announced proposed policy changes that it says would increase the efficiency of the asylum system and make it easier for judges to toss out "frivolous” claims to focus on authentic claims of persecution.
The Department of Homeland Security and the Department of Justice introduced a 161-page draft rule that they plan to publish in the Federal Register next week, starting a 30-day public comment period.
Some critics, however, contend that the proposed policies would change the definitions of terminology and could make it more difficult for some — especially those facing gang violence and gender-based violence in Central America — to qualify to seek asylum in the U.S.
The new proposal seeks to “expand and clarify what circumstances would require an immigration judge” to “find an asylum application to be knowingly frivolous.” The proposal comes as the Trump administration has held the position that some migrants are taking advantage of the U.S. asylum system.
“Accordingly, the Departments propose to amend the definition of ‘frivolous’ to ensure that manifestly unfounded or otherwise abusive claims are rooted out and to ensure that meritorious claims are adjudicated more efficiently so that deserving applicants receive benefits in a timely fashion,” the rule reads.
The draft states that “frivolousness” encompasses claims that are “without substance or merit.”
The draft contends that since migrants receive notice of consequence of filing frivolous applications, an immigration judge would not need to “provide an additional opportunity to an alien to account for issues of frivolousness with the claim before determining that the application is frivolous, as long as the required notice was provided.”
The draft states that the only procedural requirement for finding a frivolous asylum application is that the “Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A) [the consequence of filing frivolous applications].”
“[T]he alien shall be permanently ineligible for any benefits under this chapter,” the draft explains.
Immigration advocates who oppose the draft rule argue that it would make it more difficult for foreigners to seek asylum in the U.S. if they are fleeing from gender-based violence, gangs or other less severe forms of persecution.
The International Refugee Assistance Project, a legal nonprofit that frequently speaks out against the Trump administration’s refugee policies, listed several concerns it has with the proposal.
In a statement, the group contends that the “credible fear screening process” will be “modified to more easily and quickly deport people seeking protection from persecution and torture through heightened evidentiary burdens and streamlined proceedings.”
IRAP further argued that the proposal would allow judges to deny asylum “without a hearing” based on “restrictive” new policy definitions of the terms “persecution,” “torture,” “nexus,” “particular social group,” “political opinion” and “internal relocation” that are “contrary to decades of existing statutes, case law, the Refugee Convention, and international obligations.”
Under federal law, foreigners are eligible to apply for asylum if they are able to prove that they have a well-founded fear of persecution in their home countries based on race, political opinion, religion, nationality or membership in a “particular social group.”
The draft defines persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.”
“[P]ersecution requires an intent to target a belief, characteristic or group, a severe level of harm, and the infliction of a severe level of harm by the government of a country or by persons or an organization that the government is unable or unwilling to control,” the draft defines. “For purposes of evaluating the severity of the level of harm, persecution connotes an extreme level of harm and does not encompass all possible forms of mistreatment.”
“It is thus well-established that not all treatment that the United States regards as unfair, offensive, unjust, or even unlawful or unconstitutional constitutes persecution under the INA [Immigration and Nationality Act],” the draft adds.
The proposal does not define persecution to include harm from criminal activity, military strife, repeated threats with no actions taken to carry out the threats, property damage, economic harm, brief detentions, intermittent harassment or “government laws or policies that are infrequently enforced” unless there is “credible evidence” that those laws or policies have been applied directly to the applicant.
IRAP says if the new policy is enacted, U.S. immigration judges would be able to deny asylum cases “if the person did not pay taxes, has been in the United States unlawfully for more than one year, or traveled through another country on the way to the United States.”
“The proposed regulation fundamentally and restrictively alters the refugee definition for asylum seekers in immigration court and at the border in contravention of decades of established statutes, case law, and international obligations,” IRAP Policy Director Sunil Varghese said in a statement. “Few people, if any, will be able to receive the refugee protection they qualify for under this proposal, and the effects will be catastrophic.”
Galen Carey, vice president for government relations with the National Association of Evangelicals, said in a statement Friday, "we must not abandon" people who have suffered abuses elsewhere at a time in which "the world is closely watching our response to domestic human rights violations."
"Decades of humanitarian and civil rights precedents are being ignored or overturned, and our proud tradition as a beacon of hope for those fleeing persecution is at grave risk," Carey said.
Gabriel Salguero, president of the National Latino Evangelical Coalition, said in a statement that the country's "lament" in the wake of the death of George Floyd and the loss of life due to COVID-19 is "compounded by policy changes that impact asylum seekers and unaccompanied immigrant children."
"We ought not forget that our nation’s nobility is, in large part, measured by how we treat the most vulnerable," Salguero said.
The new proposal comes as the Trump administration has tried to enact policies to limit the number of migrants entering the U.S. under fraudulent asylum claims.
For example, the administration enacted a policy to ban migrants from applying for asylum in the U.S. if they did not first apply for asylum in other countries before reaching the southern border. That policy was struck down by the U.S. 9th Circuit Court of Appeals.
Federal law allows immigrants who crossed the border illegally to apply for asylum as a way to block their deportation.
In recent years, asylum seekers have been told to go to ports of entry to seek asylum. Many asylum seekers who have gone to ports of entry at the U.S.-Mexico border have been denied entry into the U.S. until their case can be processed through a policy known as “metering.”
Over 1 million people sought asylum in the U.S. last year, and these cases are decided by fewer than 500 immigration judges nationwide. The administration says this new policy, if enacted, would speed up the process, which typically takes two to- to-five-years.