Trump Overhauls Asylum Rules

July 16, 2020

Positive IRLI comment stands out amid slew of anti-borders opposition

WASHINGTON—The Immigration Reform Law Institute (IRLI) has issued a strong endorsement of proposed Department of Homeland Security-Department of Justice regulations that would reform and replace fifty years of piecemeal policy-making and adjudication in the area of asylum and related humanitarian relief. The proposed rulemaking is a truly historic document that provides comprehensive and uniform procedures and standards that strengthen America’s longstanding role as the protector of victims of persecution and torture who have nowhere else to turn.

The Trump administration’s rulemaking will bring uniformity and clarity to several dozen of the most intractable legal issues in asylum and refugee law. These rules can be sorted into three comprehensive reform projects: (1) improvement of the expedited removal and credible fear screening process, (2) better initial screening for mandatory legal elements of asylum and related relief in the written applications submitted by aliens claiming persecution and torture, and (3) the historic addition—forty years after passage of the Refugee Act of 1980—of a complete integrated set of uniform definitions and legal standards for refugee status, which will fully reflect the uniquely American statutory system for humanitarian relief and protection, as enacted by Congress from United Nations principles.

IRLI fully endorses the new regulation as a whole, but has submitted detailed analysis and comment on six topics of particularly high relevance to asylum and refugee law. An overarching theme of the comment is that the new regulations will make it much harder for the asylum system to be overwhelmed with meritless or fraudulent claims, and thus enable it to return to its historic purpose: protecting those who face government persecution in their native land.

By contrast with IRLI, an astonishing array of anti-borders groups and individuals have filed comments criticizing the new regulations, though overwhelmingly in repetitive cut-and-paste efforts with little substantive content.

“The broad scope of the new asylum application and screening rule is a response to catastrophic chaos and dysfunctionality in the worldwide refugee system that prior administrations have treated ineffectually since the 1980s,” commented Michael Hethmon, senior counsel at IRLI, who drafted the comment. “Piecemeal regulation has been catastrophic not only for United States sovereignty and vital national interests, but for progress in global anti-trafficking, anti-corruption, anti-genocide, and rule of law initiatives. Without sustainable reform on the scale of that so carefully integrated into the new regulation, the asylum system will break under the continuing weight of meritless claims and widespread fraud.”

“Opponents of this asylum rules clean-up clearly prefer the system as it is because it allows a flood of aliens—the vast majority of whom are not eligible for asylum, and never even show up for their hearings—to enter the country and stay, legally or not,” said Dale L. Wilcox, executive director and general counsel of IRLI. “This flood gives cover for human trafficking, and crowds out those who really do face persecution in their home countries. In order to get back to protecting the truly persecuted, and make headway against corruption and human rights abuses worldwide, these long-overdue reforms are absolutely necessary, and we applaud the administration for making them.”

The Notice of Proposed Rulemaking is EOIR-18-0002, Procedures of Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, published at 85 Fed. Reg. 36264 on June 15, 2020.

For additional information, contact:

Brian Lonergan • 202-232-5590 • [email protected]