Trump’s Assault on Asylum: An Opportunity to Reflect on US Humanitarian Values

July 28, 2021   •   By Sara Campos

The End of Asylum

Andrew Schoenholtz, Jaya Ramji-Nogales, and Philip G. Schrag

AT A 2019 border roundtable, former President Trump called asylum a scam. “The system is full. We can’t take you anymore. Whether it’s asylum. Whether it’s anything you want. It’s illegal immigration. Can’t take you anymore.” [1] A year before, he called the procedures ridiculous, adding, “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.” [2]


Indeed, accompanied by his principal immigration policy architect Stephen Miller, the former president set out to eradicate this thing called asylum — strip the law of all meaning and send asylum seekers back to their homelands. A new book titled The End of Asylum by a team of scholars, Andrew Schoenholtz, Jaya Ramji-Nogales, and Philip G. Schrag, catalogs the myriad ways the administration sought to accomplish that goal. Reading it might remind one of what mobsters did to Sonny Corleone in the movie The Godfather. As Sonny drives to the toll booth, a group of mobsters spray him with multiple rounds of bullets, continuing their fusillade even after Sonny exits his car and collapses on the ground. To ensure he is truly dead, an assassin fires a final coup de grâce and kicks him in the head.


The asylum system received a similar assault. Even after the former president succeeded in closing the border due to the pandemic, his administration nevertheless promulgated a sweeping overhaul of procedural and substantive standards used to adjudicate asylum claims. Had the proposed rule not been enjoined by a federal court, the regulation would have become effective after Biden entered office.


Thus, unlike Sonny Corleone, asylum law survived the barrage of attacks inflicted upon it. Battered and fragile, its skeletal form can barely deliver protection, but it lives. The End of Asylum tracks every policy memo, regulation, instruction manual, guidance, and opinion, including a seemingly innocuous application form, issued by an administration intent on its destruction. When looked upon as a whole, what the administration did is turn the statute on its head. The system resembles a kind of asylum in reverse, a law not aimed at protecting victims of persecution arriving at US borders, but a shield keeping marauders from stepping foot on US soil — as if the women and children who make up the majority of those seeking asylum today posed untold dangers to the American people.


The End of Asylum begins with the law’s origins and devotes two chapters to the period covering the Clinton to Obama presidencies. The bulk of the book, however, covers Trump-era policies and a final chapter offers recommendations to the Biden administration to repair the damage wielded by its predecessors.


The American public largely miscomprehends the asylum system, and the 45th president’s rhetoric further muddied that understanding. Modern-day asylum law was born of a monumental failure: the response by the United States and other nations to protect persecuted Jews, minorities, LGBTQ+ persons, and political opponents from Nazi persecution and extermination. Although the United States did issue approximately 20,000 visas to Jews attempting to flee Germany in 1938, the visas were unpopular and the US refused to issue more. Anti-immigrant sentiment prevailed in 1939 when the ship St. Louis arrived at the port of Miami with over 900 Jewish refugees from Germany. The ship had been bound for Havana, but at the last minute, the Cuban government refused it entry. After the US did too, the ship reversed course to Europe. Although some passengers secured protection in different European countries, over half of the passengers were returned to German-controlled territory, where they perished in concentration camps. That ship remains a shameful blight on US history.


Postwar reckoning led the international community to draft the 1951 Refugee Convention, the first human rights treaty of the modern era. The treaty accorded protection to individuals who were persecuted due to their race, religion, nationality, political opinion, and membership in a particular social group. The United States did not sign the Convention, but it acceded to the 1967 Refugee Protocol in 1968, which adopted the same protections without some of the former law’s geographic and temporal limits. In 1980, President Jimmy Carter signed the Refugee Act, codifying the refugee definition and the protections offered by these international instruments.


The Refugee Act defines who qualifies as a refugee and offers two means of protecting persecuted people: refugee resettlement and asylum. The system of refugee resettlement requires the president to consult with the US Congress to set a cap on the number of refugees it admits each year. The US State Department vets potential refugees and processes them overseas. They later enter the United States legally. In fiscal year 2017, President Obama had set the refugee admissions goal of 110,000; President Trump lowered that number to 50,000. In 2020, the United Nations reported 79.5 million forcibly displaced people around the globe. That same year, Trump set the ceiling at 15,000 refugees but only admitted 8,600 people.


The other means of protection offered by the Refugee Act is asylum. Individuals can apply for asylum once they enter the United States and need not have status to do so. Thus, contrary to a myth perpetuated by the former president, when undocumented asylum seekers approach the border seeking help, they are not engaging in an illegal act. The Refugee Act anticipates that asylum seekers will lack status and does not refuse them entry or protection because of it.


This system of protection has endured intact for over 40 years under both Republican and Democratic administrations. As Schoenholtz et al reveal in their recitation of history, however, asylum protection has been tenuous and fraught. In the 1980s, during the law’s infancy, bloody civil wars raged in El Salvador and Guatemala. Refugees fled in droves. Because of Cold War politics and US support of militaristic regimes, the Reagan administration deemed asylum seekers economic migrants and refused to offer them asylum. Nor was he alone in his tough stance against Central American asylum seekers. In 2014 and 2015, as homicide rates reached 104 per 100,000 in El Salvador and 85 per 100,000 in Honduras and the numbers of asylum seekers surged, President Obama responded by instituting a policy of deterrence and incarceration.


But if the asylum system took a battering under previous administrations, it was nothing like the war by the Trump administration against asylum law and those who sought its protection, particularly those arriving from Central America. The End of Asylum details these procedures in a comprehensive way.


One of the first policies tackled by the Trump administration was the substantive law. Because asylum seekers from Central America often present claims involving fear of gangs as well as protection from extreme domestic abuse, then–Attorney General Jeff Sessions removed a case of domestic violence that was with the Board of Immigration Appeals and referred the matter to himself. Trampling on long-standing precedent, he penned a muddled opinion denying asylum to individuals who are not persecuted by the government.


The administration stacked the immigration courts with judges who arrived with law enforcement backgrounds, more prone to deny cases. It also imposed on them a 700-case quota per year. If judges did not comply with the quota, they would be penalized. Moreover, the administration tried to decertify the immigration judges’ union. Finally, the administration instituted procedures such as metering and the so-called Migrant Protection Protocols that required asylum seekers to remain in Mexico while they waited for their cases to be heard. In some cases, asylum seekers were forced to wait in areas of extreme danger, subject to kidnapping for ransom, as documented by Human Rights Watch. [3] In another Kafkaesque maneuver, the administration issued a rule requiring asylum seekers to file for asylum in the countries they transited. If they did not, they would be deported back to that country. Thus, if an Honduran traveled through Guatemala and did not claim asylum there, she would be deported there. With three asylum officers in the entire country, Guatemala cannot possibly offer protection to the tens of thousands of asylum seekers arriving from neighboring countries.


But perhaps the most egregious and shocking tactic the Trump administration imposed was its Zero Tolerance Policy that separated parents from their children at the border. The procedure sparked such an outcry that the administration had to shut it down, but not without separating upward of 2,000 children from their families. The Biden administration quickly set up a task force to reunite these families.


In the final chapter, the authors suggest a blueprint for reversing Trump-era asylum policies. It is noteworthy that none of the measures issued during the administration required a change of law by Congress. Administration officials worked within the statute, applying illogical arguments and twisting protective language to reach results never contemplated by the drafters. Thus, the policies can be reversed. Simple reversal will not ensure that future administrations with a similar anti-asylum mindset will not wreak havoc on asylum law. But the authors recommend that the law be fortified and improved. [4]


The End of Asylum has been hailed by journalists, scholars, and other notable figures, including Stacey Abrams, who called it “[r]equired reading for an understanding of how the Trump administration wrecked the U.S. asylum system and how our humanitarian legacy can be restored.” It is indeed an essential read for all who wish to reflect on our country’s human rights values. As Americans, we struggle for a balanced approach to our professed humanitarianism. In a bleak world, we believe our nation offers the promise of hope to the oppressed. We hail the Statue of Liberty and the words enshrined on its pedestal. We call ourselves a nation of immigrants. [5] The icon and phrase are so often used they have almost become cliché. But they are not clichés to those who seek the protections embedded in them. Yet, our history is pockmarked with periods of anti-immigrant sentiment and examples of cruel policies — the Chinese Exclusion Act, Japanese Internment, our refusal to allow the Saint Louis to disembark, not to mention the xenophobic rhetoric that yielded the policies of the last four years — one that reached a nadir with the separation of families at the border. [6] If we dispense with harsh enforcement policies, how generous should we be? The End of Asylum begs us to ask ourselves what a fair asylum system should look like.


Although the book is an excellent tool for understanding asylum policies over the last four years, what was missing for this reader were the stories that make these policies come to life: of advocates who mounted a formidable defense of asylum; the Central Americans, Haitians, Venezuelans, Cubans, and Africans who found themselves at the threshold of the US border only to be turned away under the Migration Protection Policies; the conservatives who urged the president to stop the family separation policies; the victims of kidnappings orchestrated by cartels; and the dogged persistence of organizations like Justice in Motion who organized massive searches for parents in the highlands of Guatemala after they had been forcibly separated. Such a book would have taken considerable time to research and write, and these authors were in a hurry to complete the book in order to deliver the blueprint of recommendations to the Biden administration. Thus, those stories remain to be told.


¤


Sara Campos is a writer, lawyer, and currently a program officer at the Grove Foundation.


¤


[1] Maegan Vazquez and Betsy Klein, “Trump to Migrants: Can’t Take You. Our Country is Full,” CNN, 4/5/19


[2] Brent D. Griffiths, “Trump: We Cannot Allow All These People to Invade Our Country,” Politico, 6/24/18


[3] https://www.hrw.org/report/2021/01/06/im-drowning/children-and-families-sent-harm-us-remain-mexico-program


[4] As of June 2021, the Biden administration has dismantled several Trump-era asylum policies, including the Migration Protection Protocols. Attorney General Merrick Garland also struck down decisions on substantive asylum law affecting people who fear domestic and gang violence.  


[5] In 2018, the Trump Administration removed the phrase, “nation of immigrants” from its mission statement. https://theintercept.com/2018/02/22/u-s-citizenship-and-immigration-services-will-remove-nation-of-immigrants-from-mission-statement/


[6] For an interesting read on the cruel immigration enforcement following 9/11 see Deporting Our Souls by Bill Ong Hing, Cambridge University Press (2006).