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The Future of Asylum Law in Donald Trump’s America

Donald Trump’s many campaign promises may have disheartened asylum seekers or those with asylum status in the U.S. He has spoken of banning Muslims, building a wall between Mexico and the U.S., and implementing a so-called “extreme vetting” process of people from war-torn countries seeking entry into the U.S. While it is difficult to say for sure which of those promises Trump’s administration intends to make good on, it is possible to distinguish between the power that Trump will actually have to change asylum policy and how asylum law will remain unaffected. All in all, it is important to remember that applying for asylum remains an option for immigrants and their families in the U.S.
Certain protections are guaranteed to asylum seekers and asylees under international law, which the U.S. has integrated into U.S. law by ratifying several international conventions. Therefore, under international law, the U.S. is obligated to offer an asylum hearing--and ultimately protection--to a person who fears persecution based on five grounds: 1) race; 2) religion; 3) nationality; 4) political opinion; and 5) membership in a particular social group. Asylees (those who have already been granted asylum status) are entitled to keep that status unless Congress votes to change the law. And if they are in the country, asylum seekers are entitled to a hearing to demonstrate that they fear persecution based on one of the protected grounds unless Congress votes to change law.
Changing the U.S.’s obligations under international law would be an extremely long and difficult process, since it would require that the U.S. withdraw from longstanding international agreements, namely the Universal Declaration of Human Rights (1948), the United Nations Convention Relating to the Status of Refugees (1951), and the Protocol Relating to the Status of Refugees (1967). Historically, presidents have sought out the consent of the Senate before exiting a treaty, which is a time-consuming process. For these reasons, a change in U.S. asylum law is unlikely to happen soon, if at all.
However, Trump’s administration could potentially reduce the number asylees while leaving the current law intact. One possible means is by limiting the definition of one of the protected characteristics, “membership in a particular social group.” U.S. circuits interpret this phrase in differing, often competing ways. Some circuits have interpreted it very broadly, some very narrowly. This protected characteristic is most often used as the basis for asylum claims of people fleeing gang or domestic violence in Latin America, but it can be used for asylum seekers from any region of the world. By narrowing the scope of “protected social group,” the Trump administration could legally decrease the number of people who are eligible to apply for asylum, as determined by a credible fear interview. This is one way that the Trump administration could immediately change the application of asylum law, so asylum applicants seeking relief on the basis of this characteristic should be particularly careful to include evidence that they, in fact, fall within a recognizable social group.
If you are concerned about your asylum application or your status as a non-citizen and are seeking advice, it is important to consult with an experienced immigration attorney. The attorneys at Bretz & Coven, LLP have a long history of zealous, knowledgeable, and honest advocacy on behalf of immigrants. To schedule your consultation, contact our qualified lawyers today at (212) 267-2555.

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