How Trump’s Migration Policy Erodes National and International Standards of Protection for Migrants and Asylum Seekers

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Early this month, 5,600 US soldiers were deployed to the southern border as a response to an approaching migrant caravan consisting of several thousand Central Americans. U.S. President Donald Trump called the advancing group in official statements a foreign “invasion” that warrants deploying up to 15,000 army members to support the border patrol. He further publicly warned that “nobody is coming in” and once more clarified his stance on migration stating that “immigration is a very, very big and very dangerous, a really dangerous topic”. The latest footage of U.S. officers firing tear gas at migrants of the caravan-including at children- that tried to enter the country, is the disturbing result of Trump’s sketched horror scenario of a violent invasion of Central Americans.

This strict stance on migration is just the most recent example, the tip of an iceberg of the Trump administration’s aim to establish, step by step, a migration policy that erodes national and international standards of protection.

The comprehensive new migration strategy seemingly builds on a set of immediate, as well as long-term measures aiming at those who attempt to enter the United States as well as at those who are already within the state’s territory. For example, last month a new immigration policy was introduced that aimed at restricting immigrants from using public benefits, or else they may be illegible for permanent residency later on. This is just one of numerous examples of how the Trump administration severely restricted or just completely abandoned given standards such as the abolishment of the Deferred Action for Childhood Arrivals program, the prevention of dreamers from living and working in the U.S.A., as well as the abrogation of the temporary protective status programs. These turnovers of existing standards affected more than two million regularly residing migrants in the U.S.A. and fostered sentiments of fear, nationalism and division.

A comprehensive internal and external new migration policy

Especially those measures aiming at migrants outside the United States willing to enter were often followed by a lot of international media attention such as in the case of the “Travel ban”.  Since its election into office, the Trump administration ensured that the world knows that the United States government is not willing to agree on a global, non-binding standard for a safe, orderly and regular migration and that its “decisions on immigration policies must always be made by Americans and Americans alone.” International standards for migrants and refugees are seemingly irrelevant in the U.S.-governments eyes. The Trump administration bets on deterrence, on restrictions of established national and international standards for the asylum application process, on withdrawing benefits for migrants and by restricting steadily their rights to participate as an equal member in the U.S. society.

A comprehensive long-term migration control strategy aiming at restricting the rights of those within the United States is steadily implemented. One example of such an erosion of migration’s right currently ongoing under the radar of the public eye is the administration’s attempt to modify the 2020 census which could change the political landscape for the Republican’s advantage for years to come.

Yes, the Obama administration also deployed troops to the US-Mexican border and yes, there were also some cases of family-separation in this era, however not at a comparable rate.

The most notably difference between these two administrations is however the message send out. Whereas former president Barack Obama made clear that migrants mostly contribute to the country’s well-being, this attitude has been transformed into its opposite since Trump’s election.

The main goal: Keeping migrants out irrespective of binding national and international standards

Trump’s newest coup to ensure that the number of arrivals from the US’s southern neighbors continue to decrease is the above-mentioned regulation restricting the right to apply for asylum beyond the port of entry at the U.S. border. This presidential proclamation suspends longstanding domestic asylum legislature, violates constitutional due process rights and international law. For now, a federal court in San Francisco has temporarily stopped this asylum ban issuing a restraining order on the proclamation.

The 1965 Immigration and Nationality Act (INA) holds that any “alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival […]), irrespective of such alien’s status, may apply for asylum”. However, section 212(f) INA also gives the U.S. President vast authority to implement immigration restrictions by proclamation. The President may whenever he “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States […] suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Trump made use of exactly this power to impose these harsh restrictions. This proclamation is the exacerbation of the administration’s “zero tolerance policy” introduced this summer. Asylum seekers that had not entered through official ports of entry were faced with criminal charges- which was also the basis for the family separation policy. This criminalization of irregular entries is a violation of the 1951 Refugee Convention and its Protocol, to which the U.S.A. is a party. Art. 31 Refugee Convention contains the right not to be punished for irregularly entering into the territory of a contracting State.

Despite this violation, at that stage the criminal charges at least did not affect their asylum claims. Applicants were still entitled to a hearing where they could bring forward their claims for asylum. This possibility has now changed completely. Furthermore, reports show that only a single-digit number of asylum applications are processed each day at the official ports of entry. This absurd situation leads to hundreds of asylum seekers having to wait at the border post for an indefinite period of time until they may be able to bring forward their claims which reminds one of Kafka’s parable ‘Before the Law’ where the protagonist is endlessly denied from entering too.

What is more is that some individuals that have been denied access reportedly have been raped, kidnapped and beaten.  Art. 33 (1) Refugee Convention entails the customary law non-refoulementprinciple which obliges states not to turn a refugee away if her or his life or well-being would be at risk in the other state’s territory. It is disputed whether this principle applies extraterritorially (UNHCR affirmed the extraterritorial applicability) and thus whether or not the denial of entry into the U.S.A. resulting in the threatening of the well-being of an individual is a violation of international law.

Furthermore, the prohibition of collective expulsion which is a principle of general international law, obliges states that every expulsion measure is taken after and on the basis of a reasonable and objective examination of the particular case of each individual non-national of the group. The “hot return” policy clearly violates this obligation. As this practice basically annuls the right of the vast majority of asylum seekers to apply for asylum, it thus also violates the object and purpose of the Refugee Convention itself.

Trump’s new policy builds on the 1953 “100-mile zone hot return policy”

Even before the implementation of this regulation, Trump could rely on a regulation established by the U.S. Department of Justice in 1953. The “100-air-mile-zone” rule restricts the Fourth Amendment right not to be stopped and searched randomly and arbitrarily within this area. Also, within this vast zone Border Patrol agents enjoy certain extra-constitutional authorities and are allowed to operate immigration checkpoints. Most importantly for Trump’s “zero tolerance policy” is the power granted to the Department of Homeland Security to conduct expedited removals of undocumented migrants found within this zone. Basic rights in such “hot returns” are denied to the individuals such as the right to counsel or to a hearing before an immigration judge and the expulsions are usually completed within a few hours. The new regulation builds on this. Anyone who will not arrive at the official checkpoints will be automatically send back without any due process.

Given this policy, the cat seemingly has bitten its own tail here. Asylum seekers that try to follow the law by applying at the official ports of entry are practically prevented from doing so, those who refuse to follow and who manage not to get caught are now prevented from claiming asylum within the country at all. The fact that this policy violates the Refugee Convention, the prohibition of collective expulsion and, in my view,  also the customary law non-refoulementprinciple is likely to be of little concern to the Trump administration who cares very little about international law. However, hopefully the case filed by the American Civil Liberties Union, the Center for Constitutional Rights and the Southern Poverty Law Center, against this practice may be successful in revoking this illegal practice soon.

The Trump administration’s steady and clandestine restriction of the rights of migrants and asylum seeker

At the same time more quietly and clandestinely, previously established standards are revoked by the current U.S. administration and those who are pushing back the erosion of such rights are publicly discredited by the president himself (see here from 8:40 on). 

One example here is the legal sleight of hand former Attorney General Jeff Session relied upon when interfering in the matter of A-B to revoke established standards for asylum seeker. The Board of Immigration had ruled in the matter A-R-C-G in 2014 that married women fleeing domestic violence that are unable to leave their relationships may qualify as a “member of a particular social group”, which is one of the prerequisites for meeting the refugee definition (Art. 1 Refugee Convention and Protocol). Relying on a seldomly inferred legal trick, Session usurped the case and attempted to reverse this established legal standard clarifying that such claims on domestic violence are generally going to fail. 

Another legal measure to diminish existing standards is the attempt overturn of the Flores settlement of 1997. This settlement regulates the detention, release and treatment of detained minors by the immigration authorities. Its aim was a quick release of families and minor children from immigration custody. Apparently, this goal contradicts the imposed “zero tolerance policy” as Congressional Republicans have proposed to override the settlement with a bill. If the reversal would be successful, which may be a violation of the 1997 ruling itself, minors and families could be basically detained indefinitely in immigration detention centers.

The Trump administration seemingly leaves no stone unturned when it comes to curbing the numbers of migrants and asylum seekers entering the United States-irrespective of the fact that some imposed measures are inhumane, immoral and a violation of domestic and international law. What started with the “Travel Ban”, has turned into a holistic policy increasingly targeting people from Latin America. From the zero tolerance strategy, the family separation, the increased issuance of ankle monitors for asylum applicants, the announcement to incarcerate every asylum seeker during the determination process (Trump’s speech from 9:30 on), up to the massive deployment of soldiers to the border – all these restrictions of the rights of migrants and refugees were accompanied with a rhetoric fueled with hatred, xenophobia and threads. Established domestic and international standards for migrants and refugees have already been eroded and continuously are diminished by the Trump administration. The only remaining hope for those who desperately observe this erosion migrants’ rights standards is that the recently strengthened Democratic Party in the House of Representatives builds a bulwark against such policies and that the numerous filed cases revoke some of the implemented restrictions.


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Juan M. Amaya-Castro says

November 28, 2018

This elaborate analysis is thorough and rigorous, but the framing, the focus on the Trump Administration's impact, is misleading. For sure, within the US, this administration may have a lasting impact. However, courts have pushed back and there is an emboldened public reaction, and at times even outrage. And so, the true or lasting impact is still beyond the purview of analysis... In addition, and looking beyond the US, a much more rigorous undermining of international standards is taking place in the EU. Its agreements of outsourcing and offshoring to Turkey, Libya and other countries leave little standing of the non-refoulement-principle and have no equivalent, whatsoever, in the US-Central American context. Various EU states' criminalisation of assistance to asylum-seekers has no parallel anywhere. Courts in the European context have been far less effective and too often complicit, and the public outcry is muted by US standards. Germany's more welcoming approach was relatively short-lived and more the exception than the rule.

For all the blunt rhetoric coming out of Washington DC, it echoes that of the UK and other EU governments, and so I am much more hopeful about the future of international refugee protection when I contrast the US with the EU's approach.

Lena Riemer says

November 29, 2018

Dear Juan M. Amaya-Castro,

thank you for your comment and I hope that your more positive analysis of the developments in the US system will turn out to be true. However, I am afraid that we will rather witness an increasing erosion of the protective mechanism in the future as can be seen by the Trump administration’s newest idea to process asylum claims outside U.S. territory ( Yes, there is a push-back by the courts and there was public outrage after the family separation policy became public, nevertheless, as I elaborated, established standards were already undermined and the separation of families at the border continues.

And yes, blunt rhetoric and erosion of standards is not unique to the US. By focusing on the developments in the US, I did not intend to make the point that only there the asylum system is undergoing severe changes. I rather want to stress and warn that there is this erosion of standards AS WELL and that this should concern everyone who cares about protecting the rights of migrants, asylum seekers and refugees. As you pointed out, similar erosion developments can be witnessed for example in Australia and in most EU countries -including Germany.

I fully agree with your analysis that the outsourcing and offshoring process occurring in the EU is undermining established standards to a far more extreme degree. The idea to process asylum claims outside a state’s territory is not a new ‘invention’ by the Trump administration. Australia has been a ‘role model’ in this regard and the EU has debated similar concepts in the last years. Unfortunately, we witness a global trend of erosion of established standards and the Trump administration plays a a crucial role in it.