Can Trump refuse asylum to aliens who make illegal entries?

President Trump thinks aliens entering our country illegally should be returned immediately with no judges or court cases. 

This isn’t an idle threat. Vox Media reported the Justice Department is working on draft regulation that would result in “the most severe restrictions on asylum since at least 1965,” according to a source familiar with the asylum process.

{mosads}One of the proposed changes would bar aliens who enter illegally from getting asylum — and this is feasible. Asylum is a discretionary form of relief. The Immigration and Nationality Act (INA) just states that eligible aliens “may” be granted asylum.

This does not mean that Trump would be able to refuse to consider persecution claims from aliens who have made an illegal entry. They could be eligible for other, mandatory forms of relief. 

The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees.  

According to UNHCR, the U.S. cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 

The United States is meeting this condition with the withholding of deportation provision in the INA. It provides that, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”

The burden of proof is higher for withholding than it is for asylum. Asylum just requires the applicant to establish a well-founded fear of persecution. Withholding requires the applicant to establish that it is more likely than not that he would be persecuted. 

And withholding grants fewer benefits. 

A grant of withholding does not convey legal immigration status to the alien. It just prohibits sending him to a country where he would face persecution. He can be removed to another country where he will not be persecuted.

Moreover, it is not derivative. A grant of withholding does not apply to the members of the alien’s family.

The United States also is a signatory to the UN’s Convention against Torture (CAT), which prohibits the U.S. from expelling, returning or extraditing “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Relief under CAT does not confer lawful immigration status on the alien. It just prohibits his deportation to the country where he would be tortured. He can be deported to a country where he will not be tortured.

These alternatives to asylum will protect aliens from persecution or torture, but they are not comparable to asylum in any other way. If Trump wants to make it politically acceptable to bar aliens who make illegal entries from applying for asylum, he has to provide other ways for them to get the relief they are seeking.

For instance, he could establish an expanded version of Barack Obama’s Central American Minors (CAM) refugee program that would make in-country refugee processing available to adults as well as children in Central America.

Ordinarily, refugee status is only given to aliens who are outside of their country of nationality and can’t return because of a well-founded fear of persecution, but the president is authorized under the INA to include aliens who are still in their own countries when he thinks circumstances warrant it. 

Also, he could work with UNHCR to expand its refugee centers in Costa Rica. 

This would make it possible for Trump to discourage asylum seekers from making illegal entries without depriving them of an opportunity to get the relief they need for themselves and their families.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.