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AILA Doc. No. 19032731 | Dated October 12, 2020
The Trump Administration has implemented numerous policies aimed at asylum seekers arriving at our southern border. Combined, these policies form an ever-present and increasing barrier to due process protections for migrants, threatening fundamental rights like access to counsel and a fair day in court. Along with other policies aimed at asylum seekers throughout the country, these changes have made it nearly impossible for people fleeing persecution to gain protection in the U.S. This featured issue page provides updates, analyses, and other resources on these policies.
In March 2020, DHS and the CDC announced several policies that blocked asylum seekers from seeking protection at the southern border. First, on March 20, 2020, the CDC issued an order suspending for 30 days all “nonessential” travel through ports of entry on the Canadian and Mexican borders. The order allowed essential travel – a category that was broadly defined to allow anyone who was traveling for work, education, U.S. citizens, LPRs, and even anyone with a valid travel document. However, people seeking asylum at the border was deemed “non-essential” travel.
Second, the CDC issued another order that allowed DHS to expel anyone – without normal safeguards for those fleeing persecution – if there is a “serious danger of the introduction of [a communicable] disease into the United States.” Again, the order exempted large groups of people - including citizens, LPRs, and anyone with valid travel documents – but did apply to people seeking asylum in the U.S.
Both orders have been extended multiple times. As a result of these rules, processing of asylum seekers has been essentially halted on the southern border. According to the American Immigration Council “from March 20 through the end of August, CBP ‘expelled’ over 147,000 people encountered at the border from the United States to Mexico.” AILA Executive Director Ben Johnson stated that the “indefinite shuttering of our southern border is an unnecessary measure masquerading as a public health response to COVID-19.”
On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum individuals who enter the United States from Mexico between ports of entry. On July 16, 2019, the Trump administration issued a joint interim final rule—often referred to as the “Asylum Ban 2.0”—which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. See below for updates on litigation challenging these policies.
On November 19, 2019, DHS and DOJ issued an Interim Final Rule that allows it to send individuals seeking asylum along the U.S./Mexico border to Guatemala or other countries with which the United States has entered into “Asylum Cooperative Agreements.” This rule applies to individuals who arrive at a U.S. port of entry, or enter, or attempt to enter the U.S., between ports of entry, on or after November 19, 2019. Approximately 1,000 people had been processed under the U.S.-Guatemala agreement by March 2020.
On October 7, 2019, the Trump administration began a pilot program called “Prompt Asylum Case Review,” in the El Paso area to speed up the asylum process for certain non-Mexican immigrants. At the same time, the administration rolled out the “Humanitarian Asylum Review Process,” a virtually identical program which applies to Mexican nationals. Under these program, individuals are kept in holding cells (known in Spanish as hieleras) or are taken to a local 1,500-bed soft-sided facility operated by CBP and receive a decision on their request for protection in 10 days or less without going through the formal asylum process. Nearly 4,000 people had been processed through both programs by February 2020.
Cite as AILA Doc. No. 19032731.