Originally Published in The Hill
Opinion - Ruth Ellen Wasem - September 4, 2020
Since taking office, President Trump’s administration has rained a hailstorm of policy actions on refugees and asylees. A newly published analysisidentifies three types of policies: those that abandon longstanding U.S. legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. Simply put, these are the As (abandoning), Bs (blocking) and Cs (criminalizing) of the Trump administration policies on refugees and asylees.
Historical antecedents of Trump’s policies may be found in the refusal to accept Jews fleeing Nazi Germany during World War II (abandoning) and the interdiction of Haitians trying to escape the violent regime of then-dictator Jean-Claude Duvalier that began in 1981 (blocking). The Trump administration’s “zero tolerance” policy of prosecuting even minor immigration offenses (criminalizing) harkens back to the early 20th century when the eugenicists warned of “inferior aliens” who were likely to be insane or criminal; however, now the federal government keeps asylum seekers locked in detention centers, often under contracts with the private prison industry. The criminalization of refugees and asylees in conjunction with the comprehensive sweep of his initiatives abandoning and blocking refugees and asylum seekers has sent U.S. humanitarian protection policy to an unprecedented nadir.
There is little evidence of a policy evolution or maturation over time. The Trump administration opened in 2017 with policies exhibiting all three ABCs: abandoning refugee admissions; blocking Syrian nationals from refugee resettlement; and expanding expedited removal and detention. The administration’s efforts to criminalize asylum seekers reached a crescendo in 2018 with “zero tolerance.” Policy initiatives in 2019 again drew on all three ABCs: A) setting refugee admissions for fiscal year 2020 at the lowest level since the passage of the Refugee Act of 1980; B) allowing state and local officials to refuse placement of refugees; and C) detaining migrant children and families indefinitely, including those arriving to seek asylum.
Federal courts have halted some of these policies, but challenges to the lower court rulings are working their ways to the U.S. Supreme Court, which has ruled in favor of the Trump administration on some occasions. The strong proclivity of Trump’s two attorneys general — Jeff Sessions and William Barr — to assert themselves in asylum cases has further narrowed the parameters of humanitarian relief available and undermined the independence of the immigration courts.
Four graduate students at the LBJ School of Public Affairs — Jessica Eller, Emma Israel, Priscilla Lugo and Juany Torres — working under the direction of Stephanie Leutert of the Strauss Center for International Security and Law recently published a study of the Trump administration’s Migrant Protection Protocols (MPP) that forces asylum seekers to return to Mexico. This study found that asylum seekers returned to Mexico often have few resources and must navigate the search for housing and social services while at risk of violence from criminal organizations or predatory actors. Their findings were consistent with other policy researchers, including Ariel G. Ruiz Soto of the Migration Policy Institute, who have documented serious problems with MPP.
In June, the Trump administration proposed sweeping regulatory changes in asylum and withholding of removal provisions that would further restrict access to asylum. Purportedly to streamline the process, immigration judges would be able to reject cases without a hearing. The categories of people qualifying for persecution would be narrowed to exclude almost all victims of gang-related and gender-based violence. Despite exceptions provided in statute, it would bar anyone who has been in the United States for more than a year from applying for asylum. Refugees International is among organizations that have blasted these proposed changes as violating both the spirit and the letter of U.S. refugee law.
Generous humanitarian policies require energetic civic engagement and steadfast legislative efforts. Restoring the policies of the past will not be sufficient in the years ahead, because past policies were prone to inequities and bottlenecks that arguably had a magnet effect for migrants with less compelling cases, and most certainly delayed relief for those who qualified. Policymakers would be wise to weigh the advice of researchers, experienced advocates and legal experts who call for the repeal of three particularly harmful provisions: the one-year deadline for filing asylum applications, expedited removal, and “safe third country” agreements.
A sound course of action is for Congress to establish, and the administration to execute, robust and fully funded refugee and asylum policies that are generous in their priorities, thorough in their review, and expeditious in their processing.
Ruth Ellen Wasem is a professor of policy practice at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin, and a fellow at the Bipartisan Policy Center. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. Follow her on Twitter @rewasem.