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Most Migrants at Border With Mexico Would Be Denied Asylum Protections Under New Trump Rule Most Migrants at Border With Mexico Would Be Denied Asylum Protections Under New Trump Rule
(about 2 hours later)
WASHINGTON — Most migrants who travel by land to enter the United States from the Mexican border will be denied asylum protections according to plans the Trump administration announced Monday. The new rule was expected to be immediately challenged in court. WASHINGTON — Long before a surge of migrants from Central America overwhelmed the southwestern border, the Trump administration was already waging a broad assault on the rules determining who can seek asylum in the United States.
The rule goes into effect on Tuesday. It is one of the broadest attempts by the Trump administration to restrict asylum, and was announced after the president of Guatemala backed out of a meeting at the White House that had been set for Monday to discuss a similar policy. But on Monday, the administration announced one of its most restrictive rules yet for a system, enshrined in international law, that Mr. Trump has called “ridiculous” and “insane.”
Under the plan, migrants who failed to apply for asylum in at least one country they passed through on their way to the southwest border of the United States would not be protected. It would significantly affect a majority of asylum-seeking Central American families who are fleeing persecution and poverty who have tried to enter the United States at its southwest border in record-high numbers this year. In a move that would stop virtually all Central American families who are fleeing persecution and poverty from entering the United States, Trump administration officials said they would deny asylum to migrants who failed to apply for protections in the first country they passed through on their way north.
The administration has for weeks been pushing Guatemala’s government to sign a “safe third country” agreement, which would require Hondurans and Salvadorans to apply for asylum in Guatemala instead of applying for protections in the United States. Under the new rule, Hondurans and Salvadorans would have to apply for — and be denied — asylum in Guatemala or Mexico before they were eligible to apply for asylum in the United States. Guatemalans would have to apply for and be denied asylum in Mexico.
Hours after the rule was released, the American Civil Liberties Union said it “could not be more inconsistent with our domestic laws or international laws.” Lee Gelernt, deputy director of the A.C.L.U.’s Immigrants’ Rights Project, said the rule undercut Congress’s commitment to asylum protections. The rule would effectively limit asylum protections to Mexicans and those who cross the United States’ southwestern border by sea. But migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum seekers who have tried to enter the United States in record numbers this year. Border Patrol has arrested 510,412 migrant family members from Honduras, El Salvador and Guatemala at the southwestern border thus far in fiscal year 2019, compared to more than 3,200 Mexican family members.
“The Trump administration is trying to unilaterally reverse our country’s legal and moral commitment to protect those fleeing danger,” Mr. Gelernt said in a statement. “This new rule is patently unlawful and we will sue swiftly.” Many Africans, Cubans and Haitians who travel through Mexico to the southwest border would also be barred from obtaining the protections.
The rule would effectively limit asylum protections to Mexicans and those who cross the United States’ southwest border by sea. The administration made the announcement despite the fact that Guatemala and Mexico have refused to go along with the plan — meaning the countries have made no assurances that they will grant asylum to the migrants who are headed to the United States.
Migrants would still be allowed to apply for asylum at the southwest border if they have proof that they applied and were denied the protections in at least one country they traveled through. But the Trump administration, which has been negotiating fruitlessly for months with Guatemala and Mexico on the plan, gave up and made the announcement without any deal after talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting on Monday at the White House. Talks with Mexico remain in flux.
Those who can demonstrate they were a “victim of a severe form of trafficking,” will also be allowed to apply for asylum, according to a statement by the Department of Homeland Security. It was also published by the Justice Department. The new rule is expected to be immediately challenged. Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, said in a statement that the rule “could not be more inconsistent with our domestic laws or international laws” and said his organization would sue swiftly.
“This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” said Attorney General William P. Barr. “The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.” Trump administration officials countered that the surge of migrants at the border was a growing catastrophe and that something had to be done. “This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum,” Attorney General William P. Barr said. “The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border.”
The new rule is the administration’s unilateral attempt to force migrants to apply for asylum in countries south of the United States. The Trump administration has tried for months to get Mexico and Guatemala — the two countries along the route from Central America to the United States — to sign agreements that would force migrants to apply for the protections from those two countries. For decades, the United States’ willingness to serve as a place of safety for those trying to escape violence and brutality has been an expression — at times unfulfilled — of the country’s values around the globe.
These agreements would slow the flow of asylum seekers who cross the United States’ southwest border to a trickle because most of them are from Guatemala, Honduras and El Salvador. An agreement with Guatemala would force Hondurans and Salvadorans to seek asylum in that country, while an agreement with Mexico would force Guatemalans wait out that process in Mexico. The asylum system, long a part of American law, was meant to give immigrants a legal opportunity to live in the United States only when they could demonstrate that they would face persecution, torture or death if they returned to their home countries.
At a news conference in Mexico City, Foreign Minister Marcelo Ebrard said that Washington’s unilateral measure did not mean that Mexico was agreeing to the deal. Negotiations for a safe third country agreement could not begin, he said, without the approval of Mexico’s legislature. But from the moment he came into office, Mr. Trump has called the country’s asylum laws little more than permissive loopholes. “The asylum rules and laws are so bad that our Border Patrol people, who are so incredible, aren’t allowed to do their jobs,” the president said recently.
Asked what Mexico would do if the United States began denying migrants the right to petition for asylum and sending them back, Mr. Ebrard responded: “Let’s see if that happens because there are several options that we can take.” Mr. Trump argues that migrants are gaming the system by falsely claiming asylum and then skipping out on their court hearings. In fact, the government’s own statistics show that most asylum seekers show up for their court hearings, especially if they are represented by a lawyer.
“Mexico doesn’t agree with measures that limit access to asylum and refuge for those people who fear for their life or security in their countries of origin because of persecution,” Mr. Ebrard said in a subtle criticism of the new Trump administration rule. However, the waiting period to be heard in court can be years because of a backlog of more than 900,000 immigration cases. By the time immigrants show up for their hearings, they have often put down roots with children, jobs and mortgages.
Guatemalan officials for more than a month have been giving mixed signals about negotiations for a safe third country agreement with the United States. Few asylum claims are granted — the Trump administration says only 20 percent are, and immigration advocates say some 40 percent are — but both sides agree that immigrants who are ultimately denied asylum often defy deportation orders and stay in the United States illegally. Previous administrations did not make it a priority to find and deport them and instead focused on illegal immigrants who had committed serious crimes.
On Thursday, the news leaked that President Jimmy Morales of Guatemala was planning to fly to Washington, leading to speculation that he would sign a safe third country agreement on Monday. The government had not announced the trip nor provided any details of a safe third country agreement. But Mr. Trump and his immigration brain trust — led by Stephen Miller, the chief architect of his border policies — say such a loose policy lures people to the United States. They are determined to break it by any means necessary.
The reaction was swift. Three former foreign ministers and a former ambassador to the United Nations asked Guatemala’s constitutional court for an injunction against a safe third country agreement, arguing that its congress should approve it first. The court quickly agreed to consider their petition as well as two more filed by the country’s human rights ombudsman and a former presidential candidate. “Folks are incentivized by the gaps in our legal framework to come to the United States right now,” Kevin McAleenan, the acting homeland security secretary, said recently in an interview. “That’s a group we don’t think should be coming, don’t think should be crossing unlawfully, don’t think should be in the hands of smugglers and enriching criminal organizations.”
It was incomprehensible to many why Mr. Morales would agree to a safe third country agreement when he has only six months left in office. “Nobody put a gun to his head,” said Edgar Gutiérrez, one of the former diplomats who sought the injunction before the court. “He offered it.” “That is a flow we think should stop,” he said.
Mr. Gutiérrez said that about 1,000 migrants pass through the country every day and that forcing them to stay in Guatemala would make the country “an enormous concentration camp.” Although Monday’s announcement was Mr. Trump’s most wide-ranging effort to date, the administration has worked to keep migrants from seeking asylum in dozens of actions by multiple agencies.
He also expressed doubts about whether such an agreement would even work. “Guatemalan institutions have no capacity,” he said. “They can’t control the prisons, how do they have the capacity to control 700 kilometers of border?” At the United States Citizenship and Immigration Services, employees who do the initial screening interviews for asylum seekers have been issued new guidance and training manuals to make it harder for applicants to pass the screening.
Despite the Trump administration’s pursuit of a safe third country agreement, the State Department has said publicly that Guatemala was not up to the task of processing and providing for refugees. In its most recent human rights report, the State Department said that “migration and police authorities lacked adequate training concerning the rules for establishing refugee status.” At the State Department, officials have created detailed maps showing the levels of crime in Central American countries so that the screeners can challenge asylum seekers who claim to be fleeing from danger.
On Sunday morning, the Guatemalan government announced that the trip had been suspended to await the court’s decision. Rather confusingly, it denied that there was any plan to sign a safe third country agreement — even though that was the only issue before the court. At the Justice Department, Mr. Barr has issued new rules to deny bail to people in jail for immigration violations who then claim asylum. Jeff Sessions, Mr. Barr’s predecessor, ruled that fleeing from domestic violence and gangs would no longer qualify someone for asylum, though the rule has been blocked by the courts.
On Sunday evening the court ruled that it was unconstitutional for Mr. Morales to sign an agreement without approval from the Guatemalan Congress. Mr. Morales has disobeyed court rulings in the past, but the court’s unequivocal language and the widespread opposition appeared to have taken any deal off the table. At the ports of entry, Border Patrol agents have so significantly slowed the processing of asylum applicants that many migrants who have made the journey to the United States border simply give up.
The administration has yet to succeed in one of its biggest anti-asylum targets: overturning a two-decade-old court-ordered consent decree that limits the detention of migrant children to no more than 20 days and requires the children to be treated humanely. Mr. Miller, in particular, has been pushing for legislation or new regulations that would allow the government to detain children for longer than the 20 days.
The administration has also been stymied in a previous effort to declare that any migrant who crosses the southern border between the official ports of entry as ineligible for asylum. That rule was blocked by the courts.
But the courts have allowed the Department of Homeland Security to begin ordering asylum seekers to wait in Mexico for their cases to proceed, many with little access to lawyers. More than 12,000 migrants looking for asylum protections are now waiting just across the border in Mexico.
So far, the administration’s efforts have largely failed to stem the flow of migrants. In May, 144,000 surged across the border from Honduras, Guatemala and El Salvador. While arrests declined in June by 28 percent, officials estimate that by the end of the year, nearly a million migrants may have crossed the southwestern border, most of them hoping to stay permanently by claiming asylum.