Tanzina Vega: I'm Tanzina Vega. Welcome back to The Takeaway. Over the past five days, the Trump administration has released a number of changes to US asylum policy that are set to go into effect before the term ends. Some of the changes include denying asylum claims based on gender and sexuality persecution, or even persecution from organized crime. It also includes many procedural changes for immigration judges, opening the door to more asylum denials. I spoke with Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council, and he told me about the new rules and what they mean for asylum seekers.
Aaron Reichlin-Melnick: The rule makes a number of changes, both procedural and substantive to asylum law that would restrict the ability of both migrants arriving at the border and people who arrive on visas to seek asylum.
Tanzina Vega: That includes people who are fleeing their country due to gendered violence or gang violence, right?
Aaron Reichlin-Melnick: Gender will generally not be a ground for granting asylum. Importantly, the government hasn't explained how that might affect people who are seeking protection on the basis of their gender identity, including transgender individuals and gender non-binary individuals. These worlds could potentially severely restrict the access to protection for LGBT individuals. Although that would require negative interpretations of the regulations from immigration judges.
Tanzina Vega: You say this rule is sweeping, how so?
Aaron Reichlin-Melnick: Some of the biggest changes the rule makes are restrictions to the traditional definitions of asylum. One of the easiest ones to explain are changes to what it means to be persecuted on behalf of your political opinion. Under the proposed rule, it declares that the only person who can receive protection for persecution on account of political opinion is someone whose political opinion is about the control of a government. What that means is that if you're a Saudi women's rights activist and the Saudi government is persecuting you for your political activism on behalf of women's rights, so long as you are not advocating for the overthrow of the monarchy, the Trump administration's rules would bar you from seeking asylum on that basis.
Similarly, the rules in post-sweeping new restrictions on eligibility for minor situations like crossing the border without permission, failure to pay even a cent of taxes, or in one of the most absurd situations, traveling through at least two countries before arriving in the United States without seeking asylum there, even if you were just traveling through an airport.
Under the rules, an LGBT individual from Uganda, a country where homosexuality is illegal, who took the cheapest flight to JFK Airport, requiring them to transfer through Kenya and the United Arab Emirates, would start their asylum process with a negative mark against them because they failed to apply for asylum in Kenya or the United Arab Emirates, both of which are countries that ban homosexuality as well. This is an absurd interpretation that would particularly hurt those who can't afford a more direct flight, potentially leading to people being denied asylum just because they chose the cheaper flight option.
Tanzina Vega: Now, Aaron, if this goes into effect five days before the inauguration, what's the point?
Aaron Reichlin-Melnick: For generations, the United States has been a beacon of hope for those in need of protection, but this rule breaks that tradition. By choosing to move forward with the regulation just five days before the new administration takes over, the Trump administration is making clear that deterrence through cruelty is the point until the bitter end. An administration that began its time in office with the Muslim ban is ending with another illegal attack on people seeking protection or seeking to move to the United States.
Tanzina Vega: Can you give us an example of what would happen for someone who's traveled a long distance to get to the United States to request asylum?
Aaron Reichlin-Melnick: Those individuals would now be placed into what's known as asylum and withholding only proceedings, which under this other rule, they would only be given 15 days to submit an asylum application. Now, if that person was seeking asylum on the basis of domestic violence or gang violence, where their country was unwilling or unable to protect them from that violence, something which has been a successful ground of asylum for years, this rule would block that almost completely. Under the new rules, any person seeking asylum on the basis of gender or on gang violence would be effectively barred from protection, because the new rule declares those grounds will generally not support a grant of asylum, even though thousands of people have successfully won asylum on those grounds in recent years.
Tanzina Vega: How quickly would the Biden administration be able to undo this rule if they take over just a couple of days after it takes effect?
Aaron Reichlin-Melnick: It's almost certain that this regulation is going to be challenged in court, and because the changes that make are so sweeping and so unjustified, it's likely that a court is going to block it before it goes into effect. If that happens in the Biden administration would both have to agree not to fight that lawsuit and take steps to not only eliminate this new restriction but put into place new rules, which would protect the asylum system for bad actors like the Trump administration, should a new administration in the future takeover and what to make similar changes.
Tanzina Vega: Aaron, you mentioned that this could end up in court, where could it end up in court? The reason why I'm asking you that is because we know one of the things that the Trump administration has done effectively is essentially reshape our courts and appoint many, many, many judges during the past four years. Where do we think this case could end up in court, and how do you expect that it would play out?
Aaron Reichlin-Melnick: I don't have any personal knowledge of where people are planning to file these lawsuits. It's important to note that there are some bedrock principles of agency administrative law that would block this role no matter which judge sees it. In fact, we have seen with other Trump administration restrictions is at the border, including asylum restrictions, that even judges appointed by President Trump have recognized that the Department of Justice and the Department of Homeland Security have gone so far beyond the normal regulatory process and stretched the law so badly that the rules have been struck down.
Tanzina Vega: Biden takes over at the end of January, what happens next?
Aaron Reichlin-Melnick: Again, it's going to depend on what the state of that regulation is, and has it been blocked in court or not, but importantly, this isn't the only change that the administration is making to asylum in the last days. The Trump administration finalized a regulation that would impose a 15-day deadline to file asylum applications to migrants who arrive at the border. Meaning that even those who speak no English, have no resources, and have no lawyer would be required to complete and submit a 12-page asylum application in English and submit it just 15 days after their first court hearing.
Another rule finalized earlier would allow the Trump administration to impose a $975 filing fee on appeals of deportation orders, taking the opportunity to seek an appeal from a deportation order out of reach for many. We're going to see that the Biden administration is going to be faced with a raft of policies. It is going to have to move quickly to reverse and to ensure that we continue to follow our longstanding obligations to protect the vulnerable
Tanzina Vega: Aaron Reichlin-Melnick is Policy Counsel at the American Immigration Council. Aaron, thanks so much for joining us.
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