The Trump administration finalized a major overhaul of the asylum system which will take effect January 11, 2021, just nine days before President-elect Joe Biden is set to take office. The U.S. asylum policies have long been open to rampant abuse and fraud. This new regulation put forth by the Department of Homeland Security and the Justice Department will raise the standards for asylum seekers in order to crack down on fraudulent claims.
This new overhaul of the asylum system, partnered with other policies implemented by the Trump administration, brings hope of a streamlined and enhanced system. The Justice Department believes that the new asylum regulation will enable the federal government to “more effectively separate baseless claims from meritorious ones” while ensuring border security and integrity in the system. Judges have been instructed to deny asylum to those who have spent at least 14 days in any country which allows refugee or asylum applications, traveled through more than one country before reaching the United States, or have resided in the U.S. illegally for more than a year before filing an asylum application.
The new rules aim to end abuses fostered by the Obama administration. Such policies lowered the standards for asylum claims and allowed asylum applicants to enter the United States while their credible fear claim was pending. Migrants could claim they had a credible fear of returning to their home country and could not be deported until their application was formally processed. The result was a return to catch-and-release policies. Unsurprisingly, many of these so-called asylum seekers never show up for their court hearing but rather disappear into the interior of the United States.
The lower bar for credible fear claims under Obama, and the near certainty that entering such a claim would result in release, led to a dramatic increase in asylum fraud. A 2016 study from the Center for Immigration Studies (CIS) found that 90 percent of credible fear claims are initially approved but only 30 percent are found to be true. Initial approval of the credible fear claim determines that the applicant meets the lowest qualifications to apply for asylum. The applicant is then put through the full asylum application process where final approval or denial is determined.
In October of 2017, former Attorney General Jeff Sessions said that “In 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving those with just claims buried.”
Fraudulent claims not only jeopardize the integrity of our immigration system but they also significantly delay the meritorious applications of aliens who legitimately need protection.
In an effort to end the damaging catch-and-release policy, the Trump administration instituted the Migrant Protection Protocols (MPP), or Remain in Mexico policy, at the end of 2018. The MPP invokes Section 235(b)(2)(c) of the Immigration and Nationality Act and asserts that individuals illegally entering the U.S. from foreign countries through Mexico must remain there for the duration of their immigration proceedings. This action eliminates the added burden to the immigration system brought on by the catch-and-release policy and acts as a deterrent to bogus asylum claims. Under the MPP, some 60,000 migrants have been returned to Mexico to await their proceedings.
Like the MPP, this new asylum regulation is yet another important step by the Trump administration towards reforming our immigration system and eliminating loopholes which allow for abuse. President-elect Joe Biden has promised to undo many of President Trump’s immigration policies within his first 100 days in office. In the absence of such policies, we can expect fraud to continue to plague our immigration system and act as a green light for those looking to come to the U.S. illegally. In order to avoid repeating the past mistakes of the Obama administration, the Biden administration ought to build upon the foundations laid by President Trump, rather than tear down the policies that protect our immigration system from fraud and abuse.