By Sylvia Longmire
Columnist, In Homeland Security
On July 15, the Trump administration announced a new rule that would require all individuals and families seeking asylum to first request asylum in a “safe third country” prior to reaching the United States. Only if that request (or requests) was denied could a migrant apply at the U.S. border, with very few exceptions.
On July 24, the rule was challenged in a Washington, DC court, and a federal judge there let the new rule stand. However, that same day, a federal judge in San Francisco issued a preliminary injunction against the rule. While the new asylum rule cannot be carried out until the legal issues can be debated more fully, the resulting legal limbo is leaving thousands of migrants questioning what their next steps should be.
Difficulties in Stemming the Flow of Migrants
May 2019 saw a record number of migrants apprehended at the border, with the figure topping 144,000. The Trump administration has sought many different ways to stem the flow, including a failed attempt to restrict asylum applications to the border, as opposed to anywhere in the U.S. interior.
The Department of Homeland Security (DHS) has also sent approximately 16,000 migrants into Mexico under the Migration Protection Protocols program to await their immigration hearings outside of the United States. Apprehension numbers for June dropped significantly, but at this point it’s hard to say if that is a direct result of new hardline immigration policies, the natural drop every summer due to the summer heat or a combination of the two.
Conflicting Viewpoints on Asylum Legislation
The Washington, DC lawsuit was filed by local immigrant advocacy groups on July 16. According to the Texas Tribune, the two nonprofit plaintiffs argued that the war violates the Immigration and Naturalization Act and the Administrative Procedure Act.
One of the pro bono counsels argued that the rule “radically rewrites” asylum law, stripping eligibility for migrants fleeing some of the most dangerous places in the world. One of the advocacy group’s attorneys added that 60 percent of the coalition’s clients would be subject to the rule change, as well as 94 percent of the children it represents.
San Francisco Federal District Judge’s Ruling Prevents Asylum Rule from Being Carried Out until Legal Problems Solved
The federal district judge’s ruling in San Francisco came just hours after the Washington, DC ruling, and his injunction order prevents the rule from being carried out until these legal issues can be hashed out. According to the New York Times, the judge wrote in his ruling, “This new rule is likely invalid because it is inconsistent with the existing asylum laws.”
He added that the government’s decision to put it in place was “arbitrary and capricious.” It may be of note that the Washington, DC judge is a Trump appointee, and the San Francisco judge is an Obama appointee.
Currently, the majority of migrants arriving at the U.S. border are from Honduras, El Salvador and Guatemala. Should the new rule go into effect, it would require tens of thousands of migrants to request asylum in countries being ravaged by gang and drug cartel violence—areas being abandoned by residents precisely because they aren’t safe.
Many migrants have requested, and been granted, asylum in Mexico, either because their chances of obtaining asylum in the U.S. was slim or the wait in Mexico for an immigration hearing was too long. The federal judge in San Francisco noted, “We don’t see how anyone could read this record and think those are safe countries.”
In the meantime, the Trump administration is expected to appeal the San Francisco court’s ruling. Neither Mexico nor Guatemala have agreed to sign a “safe third country” agreement with the U.S., meaning they won’t guarantee asylum to anyone en route to the U.S. border.