UPDATE JULY 10: Texas Impact Submits Comments on the Proposed Rule
Texas Impact submitted comments on the proposed rule by the Homeland Security Department. Special thanks to Rick Ertel, Texas Impact’s Board President, for his leadership on gathering these comments. Please read the comments here.
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UPDATE JULY 2: Sample Comments on the Proposed Rule
“As a Christian, I have always supported the United States being a beacon for tired, poor, frightened people seeking safety. After witnessing the current dire situation on the Texas border through my participation in Texas Interfaith Center for Public Policy/Texas Impact’s “Courts & Ports: Faithful Witness on the Texas-Mexico Border,” I felt called to work to change the nature of the immigration debate in my community and to be a more informed advocate for just immigration policies.
The recent Proposed Rule “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” by the Homeland Security Department and the Executive Office for Immigration Review has created a path to asylum so narrow it makes it unimaginable what case would actually be granted.
I am, therefore, appalled and disheartened that the United States is now working to undo the decades-old international human rights framework we once championed. I believe this recent proposed rule is an attack on migrants, as well as an attempt to end asylum and protection for vulnerable populations, and am opposed because it does not reflect my Christian values or moral principles.” — Robbie Ausley, First United Methodist Church of Austin
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On June 10, the U.S. Department of Justice and the U.S. Department of Homeland Security released a proposed rule that would make it nearly impossible for an individual to claim asylum in the United States. Restricting both illegal and legal immigration and vilifying the migrants has characterized the Trump Administration’s immigration policy since day one. But the latest rule, published on June 15, has created a path to asylum so narrow it makes it unimaginable what case would actually be granted.
The proposed provisions in the rule would prevent some of the most vulnerable populations from being granted asylum in the United States. If the rule takes effect in its current state, it is likely to see challenges and even more outcry from immigration rights groups. As proposed, the rule violates the 1967 United Nations Protocol Relating to the Status of Refugees. It proposes to use “illegal entry or the attempt of illegal entry” as an adverse factor when an immigration judge uses their discretion to determine if an individual should be granted asylum. However, even if an individual meets the definition of a refugee and is eligible to claim asylum, it is still under the discretion of an asylum judge to determine if the individual “deserves” to be granted asylum. Penalizing an individual for their illegal entry or stay is something the 1951 UN Convention—which the U.S. is party to—explicitly condemns, and even further stating that “the seeking of asylum can require refugees to breach immigration rules.”
The proposed asylum restrictions are the latest in the Trump Administration’s relentless attacks on migrants. Other measures implemented to restrict asylum and deter asylum seekers, such as the Migrant Protection Protocols or the most recent Asylum Cooperative Agreements, have put vulnerable asylum seekers directly in harm’s way—sometimes forcing them to take refuge in cities the U.S. State Department has declared no-travel zones. Moreover, citing the threat of the coronavirus the administration has deported more than 1,000 unaccompanied children since March despite protections granted in the Trafficking Victims Protection Reauthorization Act of 2008.
As set forth in both the 1967 Protocol and the U.S. Immigration and Nationality Act, an individual can claim asylum if they meet the definition of a refugee and demonstrate that they will face persecution in their home county on at least one of five grounds: race, religion, nationality, membership of a particular social group, and political opinion. The most contested of the five grounds is the membership of a particular social group because it lacks a clear definition. The administration used the ambiguous definition in its advantage and created nine “nonexhaustive bases” that would be insufficient to claim asylum on the grounds of membership of a particular social group.
But the rule goes beyond narrowing the definition of membership in a particular social group and includes eight more situations that would not qualify for asylum. Under these eight situations, asylum claims based on gender or an individual’s resistance to recruitment or coercion by a guerilla, criminal, gang, terrorist, or other non-state organization would not qualify. These two situations alone will affect vulnerable women, children, and LGBTQ asylum seekers.
Excluding gender as a claim for asylum is cruel but also signals that the administration does not recognize a government’s inability or unwillingness to protect women from abuse and other forms of violence as a direct violation of their human rights. Many women from Latin American countries seek refuge from gender-based violence. Countries such as El Salvador and Honduras have some of the highest rates of femicide in Latin America. Similarly, LGBTQ asylum seekers often faced discrimination in their home countries, have suffered from sexual and gender-based violence, and have been targeted by criminal organizations. LGBTQ rights groups in Guatemala have also reported police officers inflicting harm and discrimination on the LGBTQ population. Excluding resistance to recruitment by a guerrilla, criminal, gang, terrorist, or other non-state organization also leaves many individuals, including children, with little to no options in seeking protection. Northern Triangle countries and Mexico have been plagued by gang violence with men, women, and children often caught in the cross-fire of violence or being forcibly recruited. This exclusion is not specific to Central Americans or Mexicans, but would also exclude individuals elsewhere in the world who might be trying to resist recruitment in other criminal or terrorist organizations such as ISIS or Boko Haram.
The rule further limits claims to asylum by proposing that “pain or suffering inflicted by, or at the instigation of or with the consent or acquiescence of, a public official is not torture unless it is done while the official is acting in his or her official capacity.” Therefore, if the individual is employed by the government but acts out of their official capacity or policy by torturing an individual, it would not be considered a sufficient claim for asylum.
While the new rule has nearly ended the pathways to asylum on its changes to eligibility alone, the rule also includes proposed changes to the asylum process itself. For asylum seekers who are determined to have a credible-fear of persecution or torture, they will no longer be placed into section 240 proceedings where additional procedural protections are available. Instead, asylum seekers would be placed into asylum-only proceedings, preventing them from obtaining additional forms of relief – even if they are eligible.
First, however, an asylum seeker would need to be found to have a credible fear, something that would become increasingly difficult under this new rule. The rule proposes several changes to the credible-fear screening, including raising the standard of proof, stating it would screen out “non-meritorious claims.” Claiming immigration fraud, forgery, and fabrication are so commonplace, the rule proposes to penalize any frivolous claims by permanently barring an individual from relief. Proposed provisions in the rule expand these loopholes even further by allowing an immigration judge to pretermit or deny an asylum claim without a hearing.
Policies aimed at deterring asylum seekers and preventing legal assistance and bars to asylum have already significantly decreased the number of asylum claims granted under the Trump Administration. So far in 2020, only 27 percent of asylum applications have been approved, a 37 percent decrease since 2016 and significantly less than approval rates under the Obama and Bush administrations.
Under long-established international human rights norms and conventions, any person has a human right to claim asylum and seek refuge from danger. Rather than focusing on ending asylum and painting migrant populations as a threat to national security, the U.S. should focus on recreating a system that is committed to protecting others, preventing human rights violations, and setting an example for the rest of the international community.
Take action now! Tell the Department of Homeland Security and the Department of Justice that you oppose the attempt to end asylum and protection for vulnerable populations. Until July 15, 2020, you can submit a comment online at regulations.gov with any data, arguments, or views you have on this proposed rule.
If you have trouble submitting your comment on the first link, then try to submit your comment here.
For more information on the submission process you can click here.