President Donald Trump ordered major changes to U.S. asylum policies in a White House memo released Monday night, including measures that would charge fees to those applying for humanitarian refuge in the United States.
Trump’s directive also calls for tightening asylum rules by banning anyone who crosses the border illegally from obtaining a work permit, and giving courts a 180-day limit to adjudicate asylum claims that now routinely take years to process because of a ballooning case backlog.
The order, announced in a presidential memorandum, comes as the president seeks to mobilize his supporters with a focus on illegal immigration ahead of his 2020 reelection campaign.
“If the Democrats don’t give us the votes to change our weak, ineffective and dangerous Immigration Laws, we must fight hard for these votes in the 2020 Election!” the president wrote on Twitter after the White House published his order.
The surge of migrants from Central America arriving at the U.S. southern border with Mexico has frustrated the Trump administration, which has been trying various methods to stem the flow, all of them thus far unsuccessful. The proposed changes to the asylum system aim to address one of the most confounding aspects of the surge: families seeking safe passage using long-standing U.S. asylum protections.
More than 103,000 migrants crossed the U.S.-Mexico border last month, the highest level in more than a decade. About 60 percent were Central American parents traveling with children who, upon arrival on U.S. soil, have the legal right to request refuge from persecution.
Their numbers have overwhelmed the government’s ability to hold them in custody and quickly process their claims. Adults who arrive with children are typically assigned a court date and are released into the country, often reuniting with family members and taking jobs while their claims are pending.
Trump in recent weeks has increasingly mocked asylum seekers as fraudsters trying to game the system by making up stories about their hardships and fears of return to their native lands. Although homicide rates in Central America are among the highest in the world, many of those now arriving acknowledge they are fleeing poverty and hopelessness, which are not grounds for asylum protections.
The new White House measures, which call for new regulations in 90 days, follow one week after Trump issued a memorandum directing the secretaries of state and homeland security to find ways to combat visa overstays; it is another example of the administration trying to squeeze migration as it argues that the influx of undocumented people amounts to a national emergency.
“The extensive resources required to process and care for these individuals pulls U.S. Customs and Border Protection personnel away from securing our Nation’s borders,” Trump’s latest memorandum reads.
The goal of the move, the document states, is “to strengthen asylum procedures to safeguard our system against rampant abuse of our asylum process.”
The memorandum directs Attorney General William P. Barr and acting Homeland Security Secretary Kevin McAleenan to propose regulations within 90 days that would change various aspects of the way asylum cases are handled.
It calls for the United States to charge a fee for asylum applications, and it seeks to ensure that “absent exceptional circumstances,” all asylum applications will be adjudicated within 180 days of filing.
The moves would prohibit those who have entered the United States illegally from receiving provisional work permits until they have been approved for relief or protection from removal.
U.S. immigration law grants the attorney general the authority to impose fees on asylum applicants but does not require such payments, and migrants seeking refuge to avoid deportation have not been charged.
David A. Martin, a former Homeland Security deputy general counsel who helped make changes to the asylum system in the 1990s, said that he had never heard of charging a fee to applicants and that it would be a “bad idea.”
Asylum seekers are fleeing for their lives — fearing torture or death in their home countries — and often cannot afford to survive without assistance in the United States, he said.
“Genuine asylum seekers by definition leave in the most urgent of circumstances,” Martin said. “As a group, they tend to be very short on resources. If you’re going to leave the possibility of refuge for people who legally qualify truly open, you wouldn’t impose a barrier of a fee.”
Charging a fee for asylum claims would put the United States in the clear minority. A study of 147 countries found that the “vast majority” did not charge a fee to apply for asylum, according to a December 2017 report by the Law Library of Congress’ Global Legal Research Center. Some nations charged migrants fees for temporary or permanent protection visas, though migrants could apply for waivers.
Proposing and implementing regulations typically takes months and requires a period of public comment. But Martin said the Trump administration could carry out the changes more quickly if it declares an urgent need.
In February, Trump declared a national emergency to free up federal funding to expand the wall on the nearly 2,000-mile border with Mexico. Several lawsuits are pending against the emergency, including one filed by the Democrat-controlled House of Representatives.
Trump referred to the national emergency in the memo, saying the border situation is growing “increasingly severe.”
Federal law already requires that the government adjudicate asylum cases within 180 days, Martin noted. The requirement took effect in the 1990s and helped reduce asylum fraud and slash a large backlog of cases. Under that earlier change, the government also restricted work permits to migrants whose cases had been pending at least six months.
But almost a decade ago, Martin said, asylum cases started to pile up again and the government failed to invest enough in the immigration courts to keep up. Now the court backlog exceeds 850,000 cases, including asylum, with approximately 400 judges to handle them.
Clearing cases in six months is a good objective, Martin said, but “it’s not like a brand new idea.”
The White House memo directs the Department of Homeland Security to reassign personnel to improve screening of asylum applicants, “strengthen law enforcement” and enforce deportation orders from immigration courts.
Advocates for immigrants predicted that Trump's proposals would face swift legal challenges and a protracted battle in federal court.
But they said the presidential memo could cause chaos in the already overwhelmed immigration courts, intensifying pressure on immigration judges who would be subject to case-completion quotas.
Keren Zwick, associate director of litigation for the National Immigrant Justice Center, said the court system is not equipped to handle cases as quickly as would be required. She worries that immigrants would not have fair hearings because they wouldn’t have time or money to gather evidence, find a lawyer, and support themselves while they await a hearing.
“It’s not that asylum seekers don’t want other cases to be quickly adjudicated,” she said. “There’s a fine line between quick adjudication and being railroaded through the system. ... It’s not like asylum seekers want to sit here in limbo forever,” she said. “But they also don’t want to be punished for seeking asylum.”