The Trump administration has published a final rule on new procedures for processing asylum applications that will be effective on Jan. 11, 2021. The administration says that its objective is to “more effectively separate baseless claims from meritorious ones,” which “will better ensure groundless claims do not delay or divert resources from deserving claims.”
Immigration advocates call it the “death to asylum” rule.

Too many cases

First, some details — which are always a devil in immigration issues — and some definitions.

An asylum application is considered an “affirmative” application if it is filed with USCIS by aliens who are not in removal proceedings. It is considered “defensive” if the applicant is in removal proceedings and makes the request as a defense against removal.

According to DHS’ Refugees and Asylees Annual Flow Report for 2019, aliens filed 96,952 affirmative and 210,752 defensive applications in fiscal 2019.

As of the end of the third quarter of fiscal 2020, there were 373,957 affirmative asylum applications pending at USCIS.

Defensive asylum applications are not submitted until the applicant is in a removal hearing, so it is harder to determine what the defensive application backlog is. It is apparent, however, that the immigration courts can’t keep up with their cases. As of the end of October 2020, they had a backlog of more than 1.2 million cases.

False expectations

The immigrants and their advocates in the United States may not know how narrow our asylum laws really are.

8 USC §1158(b)(1) limits asylum to aliens who can establish that they have been persecuted or have “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

It has to be a well-founded fear of “persecution” — it can’t be a fear of any other kind of harm. And the persecution has to be “on account of” one of the protected grounds. It can’t be for any other reason.

That’s the rule Congress created, and as I’ve said before: If members of Congress don’t like it, they should change it.

But what exactly does this new rule from the Trump administration do? Here are some highlights:


Published originally by The Hill.