Asylum Update
November 20, 2018
On November 19, Judge Jon S. Tigar of the United States District Court in San Francisco issued a nationwide temporary restraining order that blocks the government from carrying out Trump’s presidential order banning those crossing the U.S.-Mexico border without papers from seeking asylum unless they wait at ports of entry.
What’s Next:
Those seeking asylum now will be able to petition despite their method of entry, reverting back to the established U.S. immigration law that deems foreigners who touch American soil eligible to apply for asylum. Such individuals will not be deported immediately but are eligible to have a “credible fear” interview with an asylum officer, a screening that the majority of applicants pass.
Trump administration officials have signaled that they will continue to defend the policy as it moves through the courts, which advocates speculate will ultimately reach the United States Supreme Court.
For more information, read The New York Times’ article “Federal Judge Blocks Trump’s Proclamation Targeting Some Asylum Seekers”.
November 9, 2018
This morning, Trump signed a presidential order banning individuals crossing the U.S.-Mexico border without papers from seeking asylum unless they wait at ports of entry.
This is in direct contrast to U.S. immigration law which allows individuals fleeing from violence in their home countries apply for asylum within a year of entry–regardless of whether they entered the U.S. legally or illegally.
This order will go into effect Friday, November 9 (today) at midnight and is expected to impact majority of the asylum seekers. This new law forces them to choose between having to wait for weeks or months at overloaded ports of entry or entering the U.S. illegally with no access to seek asylum and an immediate risk of deportation.
It is important to note that this new policy does not apply to children and teenagers who cross into the U.S. without an adult. However, they will be subject to a much higher screening standard (i.e. while the current standard passed approximately 75%, the new). See below for further details.
What’s Next
As of midnight today, if someone enters the U.S. from the U.S.-Mexico border without papers but between ports of entry, they would be entitled to an interview with an asylum officer. The asylum officer would then use a standard called “reasonable fear” which is a harder hurdle to overcome than the current “credible fear” standard.
Credible Fear
Under the “credible fear” of persecution standard, if there is a significant possibility that an individual would be persecuted if deported based on her race, nationality, religion, political opinion, or membership in a particular group, that individual is allowed to go before an immigration judge. There, the individual would be able to make her case for asylum. Furthermore, while the individual’s case proceeds (as immigration court hearings take months or years) said individual would be legally able to work and live in the U.S.
Reasonable Fear
Under the “reasonable fear” of persecution standard, effective of midnight today, if someone enters the U.S. without papers between ports of entry, that individual will still be entitled to an interview with an asylum officer. However, the officer is now required to reject the previous credible fear standard, and instead screen the individual for a reasonable fear of removal – a standard that requires not just a significant possibility of persecution but a determination that persecution is more likely than not.
The difference in pass rates between credible fear and reasonable fear is striking. In credible fear cases about 75% of all asylum seekers pass. In reasonable fear interviews, a little more than 25% do — highlighting how much more difficult the asylum process will be for immigrants.
