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Jason Dzubow on Political Asylum

President Trump and the Future of Our Refugee and Asylum Programs

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The People have spoken. Donald Trump will be the next President of the United States. He will enter office with a Republican House and Senate, though not a filibuster-proof majority, but certainly enough to enact much of his legislative/policy agenda. So what can asylum seekers, asylees, and refugees expect?
Sometimes white is a very dark color.

Of course, with Mr. Trump, it's often hard to know his plan. Will he keep his campaign promises to ban Muslims? Return Syrian refugees? Build a wall? Narrow the category of people eligible for asylum (as implied by the Republican Party platform)? Can these policies even be implemented in practice? It's far too soon to know which direction Mr. Trump will go with all this, but here are some initial thoughts, not so much about what he will do, but about what he has the power to do.


Banning Muslim Immigrants
: The U.S. government has the power to block most anyone from coming to the United States. In previous eras, we have excluded Chinese, Southern Europeans, Jews, and all sorts of other "undesirables." More recently, after 9-11, we enacted Special Registration for people from certain majority-Muslim nations, though this was not a ban on Muslims, just a restriction on those already here.


Also, if you have ever applied for a U.S. visa, you know that the consulates exercise almost unlimited discretion to deny visas to people deemed ineligible. For people overseas seeking a visa, it would be easy for President Trump to deny visas to applicants from majority-Muslim countries, or to those who are Muslim. This could be done even without Congressional action.


The policy implications for such a move would be unpredictable. How would the "banned" countries react? What would this mean for our diplomatic relations with those countries and our ability to cooperate with them against the war on Islamic extremists? There are also economic implications for trade, business investment, and universities that enroll (and make money from) foreign students. I imagine the competing constituencies would weigh in on the efficacy of a Muslim ban, and so it is difficult to know how this would work in practice. But President Trump will basically have the power to block Muslims who are overseas from coming to the United States.


Refugees
: This past year, we accepted about 85,000 refugees. Traditionally, the plurality of refugees we accept are Christian, but in FY 2016--for the first time since FY 2006--the plurality (44%) of refugees resettled in the United States were Muslim (the Pew Research Center provides some good data on this subject). This shift reflected President Obama's response (tepid, in my opinion) to the Syrian refugee crisis. In determining how many refugees to bring to the U.S., the President consults with Congress and comes up with a number. So Mr. Trump could reduce or eliminate the number of refugees coming to the U.S., or he could shift the focus away from Muslim refugees.


Again, there are policy implications for such a move. The world is facing the worst refugee crisis since World War II. What does it mean for the character of our nation to ignore the suffering of these individuals? How will our retrenchment affect the efforts of other countries to assist refugees? How will it affect our ability to wield moral authority and to continue our role as the leader of the Free World? Or have we as a nation decided to abdicate that role?


Asylees and Muslim Refugees Who Are Already in the United States
: And what about those Syrian refugees (and other refugees and asylees) who are already here and have already been granted refugee status or asylum in the United States? Deporting people who are here, with lawful status, is much more difficult than excluding people from coming here in the first place. Such people have a Constitutional right to due process of law, meaning that they cannot be deported from the U.S. without a legal procedure. Currently, that procedure involves presenting one's case to an Immigration Judge, who then determines whether the person is eligible to remain in the United States. People who have already qualified for protection under U.S. law (which is based on our ratification of various international treaties) cannot simply be removed from the country. The procedure to remove them is long, and--given that they have already qualified for protection--under current law, they cannot be deported.


For these reasons, although Mr. Trump has vowed to send Syrian refugees back, I suspect that this will not be easily accomplished. First, it would mean a change in the law, and this requires the cooperation of Congress. As mentioned, while the Republicans have a majority of seats in Congress, there is still a powerful Democratic minority that could potentially block such a change. Also, it is likely that a significant minority of Republicans would oppose changing our humanitarian laws.


And even if the law related to asylum were changed, there are several other laws that people currently in the U.S. might use to avoid removal. For example, those who fear harm as defined by the UN Convention Against Torture might assert a defense based on that treaty. Those who have been here for longer periods of time might be eligible for other forms of relief, like Cancellation of Removal or adjustment of status based on a family relationship. In short, people who are living in the U.S. and who have refugee or asylum status have several layers of protection that will likely insulate them from any effort to have them removed. And any effort to make the sweeping changes needed to force such people to leave will require unified Congressional action, something that we are unlikely to see.


Of course, if such changes could somehow be made, there are policy implications here as well. What will it mean to send back Syrian refugees (mostly women and children) to that war torn region? How will it affect our moral standing in the world? What would it mean for international law in general if we abrogate our treaty obligations? And what would be the "ripple effect" of such a policy?


People with Asylum Cases Pending
: People who are in the United States with asylum cases pending also have the benefit of due process protections. They cannot be deported unless and until an Immigration Judge determines that they do not qualify to remain in the United States. Under current law, even people from majority-Muslim countries benefit from these protections--which are "rights"--under domestic and international law. To change this regime, Congressional action would be necessary. Again, it is unclear whether President Trump will have the supported needed to enact such sweeping changes in this area of law.


The bigger immediate concern for people with pending asylum cases is how the Trump Administration will allocate resources towards the asylum system. I suspect that resources will be increased for Immigration Courts (which can deport people, but which can also grant relief and allow people to stay here). I am not so optimistic about the Affirmative Asylum System--these are the Asylum Offices that review asylum cases filed by people who are in the U.S. and who fear persecution in their home country. The Affirmative Asylum System is already beleaguered by long delays, and if the new Administration diverts resources from that system, it will only slow the process further. One option for a Trump Administration might be to eliminate the Asylum Offices and send everyone to Immigration Court. How this would play out in terms of delay or efficacy, I do not know.


The Wall and Restrictions on the Definition of Particular Social Group
: Finally, Donald Trump has promised to build a wall to prevent people from entering the U.S. through Mexico. This seems to me more a fanciful campaign promise than a realistic or effective means of tightening the border. So I doubt he will build an actual wall. He could however, make it more difficult for people arriving at the Southern border to seek asylum by restricting the definition of those eligible for asylum. Specifically, many people who come to the border seek asylum because they fear persecution by gangs or domestic violence (in legal terms, they are seeking asylum because they fear persecution on account of their "particular social group"). Our current system allows such people to arrive at the border, "pass" a credible fear interview, enter the U.S., and then have their cases adjudicated by an Immigration Judge. If a Trump Administration restricted the definition of particular social group, and raised the bar for credible fear interviews, it could largely shut down the border without resorting to a wall, and probably without violating our treaty obligations.


Again, of course, there are policy concerns here. If relations with Mexico sour, that country could do less to interdict migrants traveling north through it's territory. That could result in a larger refugee crisis at our border. Also, if our country closes the doors to refugees in our backyard, other countries may follow suit, and the result would be a more severe worldwide refugee crisis, and the likely deaths of many innocent people trying to escape harm.


For now, all this is conjecture. Donald Trump will not assume office for another few months. During that time, he will (presumably) begin to articulate how he will translate his promises into actual policy. Given the campaign we just witnessed, it is difficult not to be pessimistic. However, to paraphrase John Donne, No policy is an island, entire of itself. To implement changes to the humanitarian laws will implicate many other important policy areas. Perhaps--we can hope--this will help mitigate the more radical plans raised prior to the election. Here's John Donne, once more, "Any man's death diminishes me / Because I am involved in mankind / And therefore never send to know for whom the bell tolls / It tolls for thee." Let's hope Mr. Trump recognizes the gravity of his proposed changes, and the effect they could have on innocent lives. Let's hope.

Originally posted on the Asylumist: www.Asylumist.com.

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Updated 11-09-2016 at 11:41 AM by JDzubow

Comments

  1. ImmigrationLawBlogs's Avatar
    We would all, for the sake of America, like to give Trump the benefit of the doubt and assume that his immigration policies in asylum, refugee and all other areas of immigration will be driven by rational considerations, not solely by a desire to reward the white nationalist voters who helped him win the White House.

    His promise in his November 8 victory speech to be president of all Americans, without regard to race or religion, was a hopeful sign in that direction.

    But Trump's reliance on immigrant-hating Republican advisers such as Alabama Senator Jeff Sessions and, reportedly, Kansas Secretary of State Kris Kobach, together with the wild and inflammatory remarks Trump has made about non-white immigrants during his campaign, and the two decades of Republican agitation and legislation against mainly non-white immigrants that preceded Trump and, arguably, led to his nomination and election as president, are less hopeful signs for the future.

    Roger Algase
    Attorney at Law

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