On 10 December 2020, the Trump administration finalised new regulations to restrict the ability to seek refuge in the United States. The regulations were dubbed as the “death to asylum” rules. The regulation was set to come into force on 11 January and would have undoubtedly made it extremely difficult for those fleeing persecution to claim asylum in the US. 

However, a last-minute legal challenge meant that the rules did not take effect on 11 January—a major win for immigration lawyers and campaigners. Now it will be in the hands of the Biden administration to decide whether to appeal the preliminary injunction.

The regulations would have impeded asylum claims across the board. Human Rights Watch identified three specific groups who would face virtually insurmountable barriers if the new regulations would have come into force. These groups include individuals fleeing gang violence, escaping domestic abuse, or facing persecution based on their sexual orientation or gender identity. 

The Trump administration justified the regulations on the basis that too many resources are currently wasted on “baseless claims,” and the new process would be able to more effectively identify claims with merit. However, the American Immigration Lawyers Association (AILA) stated that the rules raise the bar “so impossibly high that it effectively shutters the US asylum system”.

WHY THE REGULATIONS SPELT “DEATH TO ASYLUM” 

The draconian measures, set out in a 419-page document, include provisions that would make it harder to pass the preliminary screening at the border. Moreover, the regulations would have narrowed the definitions of “persecution,” “particular social group,” and would have granted immigration judges the power to reject applications without hearings. 

The “persecution” threshold would have required “the infliction of a severe level of harm” that constitutes “an exigent threat”. Worryingly, the rules explicitly stated that this test would not be automatically met by generalised harm arising out of civil or military strife in a country or treatment that the US might regard as offensive, unlawful, or even unconstitutional. This change could have resulted in a lacuna for those who have suffered cumulative harm over a long period. 

The regulations, under which all applicants must demonstrate a “credible fear of persecution or torture,” would have been particularly devastating for those with gender-based claims. They state that these claims will generally not be cognizable. The US Department of Justice has explained that these claims “likely lack the requisite particularity due to the “broad swaths of society [that] may be susceptible to victimization” or social distinction to be cognizable.” Thus, it seems that individuals with these claims would be required to overcome an extremely high bar to demonstrate that they have a credible fear of persecution.

Additionally, under the proposed changes, many individuals may not have been eligible for asylum if an immigration judge considered that they could have internally relocated within their country of origin. The US Department of Justice argued that there is a rebuttable presumption that relocation is a reasonable option where the persecution has not been inflicted by the government directly. According to the organisation Immigration Equality, the rule would have cost “hundreds of thousands of lives, including those of LGBTQ and HIV-positive people”.

THE SUCCESSFUL LEGAL CHALLENGE

Due to the severe impact that the rules would have had on asylum seekers with gender-based claims, Lambda Legal and other immigration advocates challenged the Trump administration with legal action. Lambda Legal stated that the administration effectively “eliminates eligibility for asylum to anyone with a gender-based claim”.  

The lawsuit, filed on 21 December 2020, challenged various aspects of the proposed regulations. As the courts require time to consider the regulation’s legality, the plaintiffs asked the court to issue an emergency motion halting implementation in the interim.  

On 30 December 2020, 22 attorneys general from across the US gave their support to the legal challenge against the regulations through amicus briefs. The Californian Attorney General asserted that the regulations “run counter to our nation’s core values” 

Three days before the rules were to come into force, the US District Court for the Northern District of California issued an order blocking the rules in their entirety from taking effect. Judge Donato stated that the plaintiffs provided “ample evidence” that if the rules came into force, it would harm their mission to provide legal services and assistance to asylum seekers. As a nationwide injunction was granted, it meant that the controversial regulations will not take effect while the case is being litigated.

WHAT HAPPENS NEXT?

Following the ruling, Lambda Legal stated that they are relieved that the court “has put this abhorrent policy on hold while we continue to make our case”. Although the case is technically still active, the Biden administration could decide to accept the court’s ruling and agree to withdraw the proposed regulations. During his Presidential campaign, Biden expressed his commitment to a fair and humane immigration system, and pledged to take urgent action to undo the damage caused by the Trump administration. Therefore, it is likely that the new administration would not want Trump’s draconian rules to take effect. 

Although these regulations may have been defeated, the Trump administration enacted over 400 policies that impacted the immigration system. Reversing all these intertwining regulations would be a difficult and lengthy process for Biden. It is yet to be seen what action he will take to uphold his commitments to a fair asylum process. 

Nancy graduated from the University of Leeds with a degree in Law in 2018. She has been working as a paralegal in civil liberties and human rights, primarily assisting clients in relation to the Grenfell Tower Inquiry. In January 2021, she will join the organisation INQUEST as a caseworker, supporting bereaved families in inquest proceedings. Nancy is an aspiring barrister and would like to specialise in public law and human rights.

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