New Asylum Rule: Apply for asylum elsewhere but; if your claim is rejected, please come to the United States

By Nayla Rush on July 17, 2019

The new "Asylum Eligibility and Procedural Modifications" rule introduced by the Trump administration to address the border crisis is under a lot of scrutiny. This new rule stipulates that "aliens who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States" will no longer be eligible for asylum in the United States. Only migrants who applied for asylum in one of these third countries and whose claims were rejected will be allowed to seek asylum here.

Here's my quick two cents on the subject: Asylum seekers should apply for protection as soon as they can instead of heading to the United States but the United States should accept these third countries' rulings, especially that most are signatories of the Cartagena Declaration, which establishes a broad definition of who should be considered a refugee (a person granted asylum can also be referred to as refugee).

The idea that a person fleeing persecution should seek urgent protection in the first available country makes perfect sense; asylum seeking is not about country shopping. A European law, the Dublin Regulation, is based on that exact principle: the examination of asylum claims are to be handled by a single, clearly determined member state that is the first EU state through which the asylum seeker entered the European Union. The fact that migrants cross several countries on their way to the United States but insist on applying for asylum on American soil can only mean one thing: their journey is not about persecution but about destination.

Under this new policy, migrants who have been denied asylum in another country will be eligible to seek asylum in the United States. Here's where I think we’ve got a problem: 

Doesn't the United States trust these third countries to make the right call about asylum cases? And if the answer is no, why demand that protection claims be made there to begin with? What is even more puzzling is that most of these countries abide by the Cartagena Declaration's definition of a refugee that allows a broader category of persons in Latin America in need of international protection to be considered as refugees. The UN refugee agency viewed the Cartagena Declaration "as one of the greatest accomplishments in the development of the refugee protection regime in Latin America. It is most frequently invoked as the source of a broad definition of who should be considered a refugee [emphasis added]." When countries who adopt this broader definition (the United States is not a signatory of the Cartagena Declaration) decide to reject an asylum application, there is grounds to believe that the applicant was not deserving of a refugee status. Yet, the United States plans to disregard these rulings – the exact ones it is pushing for – and ask failed applicants to head to the States for a review of their asylum claims. 

Assuming fraudulent asylum seekers were rightfully denied protection in a third country, how does it make sense for the United States to say: we don't trust these case determination decisions anyway, just come here and we’ll look at your case again? Let me stretch this further, what if word got out to migrants (and it will) that the only way to reach the United States these days is by failing an asylum claim elsewhere? Wouldn't it be possible for some to try and do just that, fail that initial test for a shot at the American dream?

It makes sense for the U.S. government to ask that asylum seekers apply for urgent protection in countries closer to the homes they are fleeing. What is less understandable is not respecting the outcomes of these asylum claims and enticing those who have been denied asylum to get on the road again (at tremendous risks and costs) and head to the United States. With this irresponsible loophole, the border crisis is far from being solved. 


Topics: Asylum