WashU Expert: Latest Trump asylum change is illegal

Interim regulation aims to limit ‘asylum admissions to trickle’

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Attorney General William Barr announced July 15 a new Trump Administration plan, effective the next day, barring Central American immigrants from seeking asylum in the United States unless they seek it first in other Central American countries, a move that a Washington University in St. Louis immigration expert says “violates the clear language of the law.”

He described it as “yet another roadblock to asylum” by the administration of President Donald Trump.


“This comes on the heels of several attempts — many of which the courts have rightly struck down as illegal — to reduce our country’s refugee and asylum admissions to a trickle,” said Stephen H. Legomsky, the John S. Lehmann University Professor Emeritus at the School of Law and former chief counsel for U.S. Citizenship and Immigration Services in the Obama administration.

“This latest assault on asylum seekers would automatically bar asylum for anyone who arrives at our southern border after transiting through one or more other countries unless they had applied for asylum in one of those countries,” Legomsky said, noting that there is an exception for trafficking victims. “The practical effect, and the admitted intention of the regulation, is to virtually eliminate asylum claims by the Central American refugees who are fleeing from rape, murder and other horrific violence in their home countries.”

Legomsky expects the courts to swiftly block the move.

The administration’s announcement followed a weekend where raids were expected by Immigration and Customs Enforcement (ICE) — though rolled out slowly — and amid accounts of overcrowded and overburdened detention facilities, where asylum seekers claim maltreatment and at last count seven children have died.

“Congress has indeed authorized the Secretary of Homeland Security to establish ‘additional limitations and conditions’ on asylum, but only if they are ‘consistent’ with the asylum section of the statute. By barring asylum to anyone who transited through a third country and didn’t apply for protection there, the regulation is inconsistent with the explicit language of the asylum provision of the statute,” Legomsky said.

Legomsky noted that only in two specific situations does the statute bar asylum because of the possibility of protection elsewhere:

  • He cited one statute that bars asylum when the person was “firmly resettled” in another country. “The interim regulation, in contrast, would bar asylum regardless of whether the person was firmly resettled there,” Legomsky said.
  • Another statute bars asylum when a person can be returned to a third country that has entered into a bilateral or multilateral treaty with the U.S.  that authorizes sending the asylum seekers there. “The U.S. has such a treaty with Canada but not with any other country. That fact alone makes the interim regulation illegal. Moreover, even if there were such a treaty, the country has to be ‘safe.’  The violence-plagued countries through which the Central American asylum seekers are transiting are highly dangerous,” he said.

Legomsky added that the Department of Homeland Security news release announcing this new regulation “falsely claims that the new bar applies only when protection in a third country is ‘available.’  The interim regulation contains no such limitation.  It would bar asylum regardless of whether protection in the transit country was available and regardless of how dangerous that country is.”

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