The U.S. immigration system is a complex entity. Partly constructed by international laws, federal laws, executive orders and rulings by the Attorney General, it’s an unstable process that is complicated to discern.
Only Congress can amend U.S. immigration policy. But to bypass it, the Trump administration has focused on asylum, over which the executive branch can exercise more control.
The Trump administration has spent the last two years reshaping the asylum policies in unprecedented ways, resulting in confusion across the board for immigrants and advocates alike.
Here are three big ways the Trump administration has changed asylum over the last two years. This list is not exhaustive, but it highlights the multi-pronged approach the administration is employing to restrict asylum.
Keeping people at the southern border for longer
If someone seeking asylum makes it to the southern border, they will face an indefinite delay to before they even have the opportunity to apply for asylum. The administration has ramped up a process called metering, which puts an arbitrary cap on the number of asylum applications accepted each day. This policy has resulted in the construction of tent cities along the U.S.-Mexico border, with hundreds of families waiting an indeterminable amount of time just for the opportunity to apply.
On November 9, President Trump issued a proclamation that restricted eligibility for asylum to those who cross the U.S.-Mexico border at an official border crossing. This ban is in direct contrast to the Immigration and Nationality Act (INA), which states anyone who is physically present in the United States can apply for asylum whether or not they entered at a designated port of entry. Trump’s proclamation undermines the right to due process for asylum seekers before they are even able to begin the application process.
The restriction was immediately challenged by the ACLU and eventually put on hold by a California judge, who wrote, ‘whatever the scope of the President’s authority, he may not rewrite the asylum laws to impose a condition that Congress has expressly forbidden.” Despite its short life, this proclamation added even more confusion to the already unpredictable asylum process.
In another attempt to limit asylum eligibility, in June, former Attorney General Jeff Sessions restricted asylum eligibility for victims of gang and domestic violence. Sessions overturned a ruling of a Salvadoran woman who had been granted asylum on the basis of domestic violence, and thus overruled a 2014 precedent that established domestic violence as a valid credible fear. Sessions’ ruling led to a surge in rejections of asylum applications. A judge overturned Sessions’ ruling on Wednesday, but not before innumerable applications were rejected because of his interference.
Immigration judges are not part of the judicial branch, but are instead under the jurisdiction of the Department of Justice. That means they don’t have the same judicial independence that other judges have.
During his time as Attorney General, Sessions imposed a case quota for judges, requiring them to complete 700 cases a year. That comes out to an average of just two and a half hours to review each case. As The National Immigration Judges Association said, such a quota will result in decisions being unfairly rushed and undermine their judicial independence.
Most of Trump’s immigration policies have been challenged in court. Some of the challenges have been successful — and some have not been — but the confusion created in the meantime has added even more uncertainty for those fleeing danger and seeking refuge in the United States.