President Trump and the Future of Our Refugee and Asylum Programs

by Jason Dzubow on November 9, 2016

The People have spoken. Donald Trump will be the next President of the United States. He will enter office with a Republican House and Senate, though not a filibuster-proof majority, but certainly enough to enact much of his legislative/policy agenda. So what can asylum seekers, asylees, and refugees expect?

Sometimes white is a very dark color.

Sometimes white is a very dark color.

Of course, with Mr. Trump, it’s often hard to know his plan. Will he keep his campaign promises to ban Muslims? Return Syrian refugees? Build a wall? Narrow the category of people eligible for asylum (as implied by the Republican Party platform)? Can these policies even be implemented in practice? It’s far too soon to know which direction Mr. Trump will go with all this, but here are some initial thoughts, not so much about what he will do, but about what he has the power to do.

Banning Muslim Immigrants: The U.S. government has the power to block most anyone from coming to the United States. In previous eras, we have excluded Chinese, Southern Europeans, Jews, and all sorts of other “undesirables.” More recently, after 9-11, we enacted Special Registration for people from certain majority-Muslim nations, though this was not a ban on Muslims, just a restriction on those already here.

Also, if you have ever applied for a U.S. visa, you know that the consulates exercise almost unlimited discretion to deny visas to people deemed ineligible. For people overseas seeking a visa, it would be easy for President Trump to deny visas to applicants from majority-Muslim countries, or to those who are Muslim. This could be done even without Congressional action.

The policy implications for such a move would be unpredictable. How would the “banned” countries react? What would this mean for our diplomatic relations with those countries and our ability to cooperate with them against the war on Islamic extremists? There are also economic implications for trade, business investment, and universities that enroll (and make money from) foreign students. I imagine the competing constituencies would weigh in on the efficacy of a Muslim ban, and so it is difficult to know how this would work in practice. But President Trump will basically have the power to block Muslims who are overseas from coming to the United States.

Refugees: This past year, we accepted about 85,000 refugees. Traditionally, the plurality of refugees we accept are Christian, but in FY 2016–for the first time since FY 2006–the plurality (44%) of refugees resettled in the United States were Muslim (the Pew Research Center provides some good data on this subject). This shift reflected President Obama’s response (tepid, in my opinion) to the Syrian refugee crisis. In determining how many refugees to bring to the U.S., the President consults with Congress and comes up with a number. So Mr. Trump could reduce or eliminate the number of refugees coming to the U.S., or he could shift the focus away from Muslim refugees.

Again, there are policy implications for such a move. The world is facing the worst refugee crisis since World War II. What does it mean for the character of our nation to ignore the suffering of these individuals? How will our retrenchment affect the efforts of other countries to assist refugees? How will it affect our ability to wield moral authority and to continue our role as the leader of the Free World? Or have we as a nation decided to abdicate that role?

Asylees and Muslim Refugees Who Are Already in the United States: And what about those Syrian refugees (and other refugees and asylees) who are already here and have already been granted refugee status or asylum in the United States? Deporting people who are here, with lawful status, is much more difficult than excluding people from coming here in the first place. Such people have a Constitutional right to due process of law, meaning that they cannot be deported from the U.S. without a legal procedure. Currently, that procedure involves presenting one’s case to an Immigration Judge, who then determines whether the person is eligible to remain in the United States. People who have already qualified for protection under U.S. law (which is based on our ratification of various international treaties) cannot simply be removed from the country. The procedure to remove them is long, and–given that they have already qualified for protection–under current law, they cannot be deported.

For these reasons, although Mr. Trump has vowed to send Syrian refugees back, I suspect that this will not be easily accomplished. First, it would mean a change in the law, and this requires the cooperation of Congress. As mentioned, while the Republicans have a majority of seats in Congress, there is still a powerful Democratic minority that could potentially block such a change. Also, it is likely that a significant minority of Republicans would oppose changing our humanitarian laws.

And even if the law related to asylum were changed, there are several other laws that people currently in the U.S. might use to avoid removal. For example, those who fear harm as defined by the UN Convention Against Torture might assert a defense based on that treaty. Those who have been here for longer periods of time might be eligible for other forms of relief, like Cancellation of Removal or adjustment of status based on a family relationship. In short, people who are living in the U.S. and who have refugee or asylum status have several layers of protection that will likely insulate them from any effort to have them removed. And any effort to make the sweeping changes needed to force such people to leave will require unified Congressional action, something that we are unlikely to see.

Of course, if such changes could somehow be made, there are policy implications here as well. What will it mean to send back Syrian refugees (mostly women and children) to that war torn region? How will it affect our moral standing in the world? What would it mean for international law in general if we abrogate our treaty obligations? And what would be the “ripple effect” of such a policy?

People with Asylum Cases Pending: People who are in the United States with asylum cases pending also have the benefit of due process protections. They cannot be deported unless and until an Immigration Judge determines that they do not qualify to remain in the United States. Under current law, even people from majority-Muslim countries benefit from these protections–which are “rights”–under domestic and international law. To change this regime, Congressional action would be necessary. Again, it is unclear whether President Trump will have the supported needed to enact such sweeping changes in this area of law.

The bigger immediate concern for people with pending asylum cases is how the Trump Administration will allocate resources towards the asylum system. I suspect that resources will be increased for Immigration Courts (which can deport people, but which can also grant relief and allow people to stay here). I am not so optimistic about the Affirmative Asylum System–these are the Asylum Offices that review asylum cases filed by people who are in the U.S. and who fear persecution in their home country. The Affirmative Asylum System is already beleaguered by long delays, and if the new Administration diverts resources from that system, it will only slow the process further. One option for a Trump Administration might be to eliminate the Asylum Offices and send everyone to Immigration Court. How this would play out in terms of delay or efficacy, I do not know.

The Wall and Restrictions on the Definition of Particular Social Group: Finally, Donald Trump has promised to build a wall to prevent people from entering the U.S. through Mexico. This seems to me more a fanciful campaign promise than a realistic or effective means of tightening the border. So I doubt he will build an actual wall. He could however, make it more difficult for people arriving at the Southern border to seek asylum by restricting the definition of those eligible for asylum. Specifically, many people who come to the border seek asylum because they fear persecution by gangs or domestic violence (in legal terms, they are seeking asylum because they fear persecution on account of their “particular social group”). Our current system allows such people to arrive at the border, “pass” a credible fear interview, enter the U.S., and then have their cases adjudicated by an Immigration Judge. If a Trump Administration restricted the definition of particular social group, and raised the bar for credible fear interviews, it could largely shut down the border without resorting to a wall, and probably without violating our treaty obligations.

Again, of course, there are policy concerns here. If relations with Mexico sour, that country could do less to interdict migrants traveling north through it’s territory. That could result in a larger refugee crisis at our border. Also, if our country closes the doors to refugees in our backyard, other countries may follow suit, and the result would be a more severe worldwide refugee crisis, and the likely deaths of many innocent people trying to escape harm.

For now, all this is conjecture. Donald Trump will not assume office for another few months. During that time, he will (presumably) begin to articulate how he will translate his promises into actual policy. Given the campaign we just witnessed, it is difficult not to be pessimistic. However, to paraphrase John Donne, No policy is an island, entire of itself. To implement changes to the humanitarian laws will implicate many other important policy areas. Perhaps–we can hope–this will help mitigate the more radical plans raised prior to the election. Here’s John Donne, once more, “Any man’s death diminishes me / Because I am involved in mankind / And therefore never send to know for whom the bell tolls / It tolls for thee.” Let’s hope Mr. Trump recognizes the gravity of his proposed changes, and the effect they could have on innocent lives. Let’s hope.

{ 27 comments… read them below or add one }

Edison January 19, 2017 at 4:25 am

what happen to the asylee or those granted thier asylum when mr. donald trump wants to deport those legal and illegal docs.and also those refugees and asylees…what happen to them..?

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Eldhose K January 16, 2017 at 7:35 pm

Hi , I came to USA in March 2013 in C1D Visa(cruiseline job) from India , its been almost 3 years now am staying in US, my questions are
Can I apply for an Asylum ? If I can , will marriage help me to adjust my status/ if yes how long it will take normally? If I go back to India before the decision of Asylum case , how it will affect my re-entry ?

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Jason Dzubow January 18, 2017 at 7:38 am

People who enter the US as crew members have a lot of restrictions on what they can do here, and so I am not sure about whether you can get a green card based on marriage. As for asylum, you can file, but you missed the one-year filing deadline (you are supposed to file within one year of asylum of you are not eligible for asylum). Maybe you meet an exception to that filing deadline – you can talk to a lawyer about that. Also, I do not know whether entering as a crew member has any effect on an asylum case. I think if you are trying to get a green card based on marriage or based on asylum, you need to talk to a lawyer about it. If you leave the US while your asylum case is pending, it is best to contact the asylum office and withdraw the case. Otherwise, they will eventually issue a deportation order against you, which will make it more difficult to return to the US. Take care, Jason

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Edison January 12, 2017 at 4:52 am

Hello,

2009 my mom filed a petition and possible the petitin comes out by 2020.. i came here in USA for a tourist after my visa expired i applied an Asylum. And my application for asylum granted so i get my EAD,SSN.. not my question is what if assuming my mom petitions comes out and im a asylum can i use my petition to file a green card or become a US citizen..?

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Jason Dzubow January 13, 2017 at 7:18 am

You probably could do that, but it seems like a waste of time. You can file for your green card one year after your asylum was granted. Four years after that, you can file for your US citizenship. You will get the GC much faster based on your asylum. Take care, Jason

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JAMES January 10, 2017 at 12:51 am

Hello Mr. Jason,

My asylum is pending and just applied for my EAD and waiting for approval.
I have Asylum Receipt and My Passport, as my ID.
Is it possible for me to Rent an apartment here in Houston TX ?

I am living with one of my friend and he is leaving the apartment as his contract expired.

Is it possible for me to get the contract on my name, with my above ID proof ?

I just applied for my EAD. How long it will take to get it approved in Houston, TX ? Also, do I need to apply for SSN, separately or it comes alongwith EAD ?

Looking forward to hear from you.

With Best Regards
James

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Jason Dzubow January 12, 2017 at 7:28 am

I do not know what the landlord will need to rent you a place – you will have to ask about the landlord. EADs where I live (East Coast) take 3 or 4 months from the time you file, but it may be faster in TX. Once you have the EAD, you will need to contact your local Social Security office and get the SSN. Take care, Jason

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Mn January 2, 2017 at 11:10 pm

What will be the fate of aliens who are granted withholding of removal after convicted of a crime

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Jason Dzubow January 3, 2017 at 7:29 am

It depends on the crime. Certain crimes block a person from Withholding of Removal. If so, the government will try to deport the person again. They can still try to claim relief under the Torture Convention, which may or may not work, depending on the case. Also, some crimes require mandatory detention under the immigration law, and so even if the person is not deported, he or she might be placed into detention. Take care, Jason

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Jonny December 31, 2016 at 6:26 pm

At what time do I ask asylum before or after the Trump be a president

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Jason Dzubow January 2, 2017 at 10:45 am

Who knows? If it was me, I would ask before he comes in, just so that you are in the queue and if the system changes for the worse, maybe you will be under the current system. But it may not make much difference – no one knows. Take care, Jason

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Mozart December 20, 2016 at 5:43 pm

Hi Jason, I have a few questions regarding the future of TPS under the new administration. I am from El savador I came here at a very young age(1998), in which I wasn’t paroled in properly. Since then I have had TPS for some time, in which their is no possible way for me to adjust status. I found out that I was in deportation proceedings after calling their hotline number in 2004, in which I missed due to reasons I had no control over(I was only 9 at the time). I must have been placed in absentia after missing the court date, effectively banning me from adjusting status for a period of ten years. If I reopen the case, and try to appeal and state the reason for my appeal has not having reasonable notice, what are the chances that I win the case? Also what are the chances that TPS is abolished under the new administration?

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Jason Dzubow December 21, 2016 at 7:31 am

I do not know much about TPS, so I cannot help with this. I recommend you talk to a lawyer who does TPS and hopefully he/she can help. Take care, Jason

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Francisc Lu December 19, 2016 at 10:54 pm

HI
i am from Africa,angola and originally from Cabinda Enclave, I am seeking for asylum will Trump Govern accept people from africa, facing repression and fear?

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Jason Dzubow December 20, 2016 at 7:33 am

In order to block you, he would probably need to change the law, which requires the cooperation of Congress, and that may not be too easy. I suspect that you will still be able to pursue an asylum case. Take care, Jason

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amandeep December 14, 2016 at 2:24 pm

Dear Jason hi

i have Q regarding Asylum i am from india can i eligible for asylum.

thanks

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Jason Dzubow December 15, 2016 at 6:59 am

Some people from India qualify for asylum. Take a look at the instructions for the form I-589, available at http://www.uscis.gov. It will give you an idea about who is eligible. Take care, Jason

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Loe K December 8, 2016 at 2:48 am

Hi Jason,
Thanks for the service you provide. Few weeks ago, someone provided a refence to you on an online discussion forum and since I have been reading your postings. I am also one of those whose application for adjustment (I485) is on hold for years because of material support provisions of INA. Recently in responding to my inquiry about the status of my pending application the service provided very specific information as to the reason for the hold. I was informed that my application was on hold because I joined a military group led by my uncle and the service I provided was voluntary for which there exists no exemption now.
In fact, I had never mentioned in my application (I589) or in interviews with AO that I had affiliation with any military or political organization in my home country. My entire claim was based on my activities outside of my country. The AO initially denied my application telling that my fear was not well founded but at the same time it acknowledged that I was very credible. Few years later I filed another application for asylum and the court granted it. The immigration judge in delivering the decision mentioned specifically that the service in first application concluded that I was very credible.
I strongly believe that I did not mention in either my interview with AO or the court hearing that I had affiliation with any military or political organization. And the reason is that simply I did not. Now, I have filed G 639 to find out more information. I am seriously contemplating to challenge the hold in the court.
My question is that if I the court does not decide for me what impact it may have on my status as an asylee

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Jason Dzubow December 9, 2016 at 7:23 am

Once you get the FOIA results, you will be in a better position to know what (if anything) is in your file about the military group. It may be that USCIS found information or got info from the State Department (US Embassy in your country) about your involvement. This info may or may not be accurate. Unfortunately, it is possible that the info you get will be redacted, and if there is evidence against you, it may be classified and you may not be able to see it. If they fail to give this to you, you can file a lawsuit to try to get it. Once you have the info, you could try to force the government to make a decision in the case by suing. You could also try to convince USCIS by submitting evidence that you are innocent. Either way, I recommend that you use a lawyer to evaluate the situation and choose a strategy. Generally speaking, my guess is that the risk of losing asylum status is not great, but the lawyer should evaluate any risk you face as well. Take care, Jason

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duke December 7, 2016 at 11:18 pm

Hello jason
I won the asylum grant by IJ on Nov2, DHS appealed on very last day on dec 2 and asked for three members review at BIA.
What are my chances to win at BIA? Will BIA grant three members review/
I had good attorney but I dont think he has enough experience in pleading in front of BIA.

I am shopping around for good attorney who is an expert in fighting the DHS appeals.
I had a genuine case and IJ granted relief.

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Jason Dzubow December 9, 2016 at 10:18 am

I cannot evaluate the chances for you to win at the BIA, as it depends on the basis for the appeal. Usually, DHS does not appeal unless they believe they have a chance to win, but sometimes, they appeal for no good reason. If you trust your lawyer, he knows the case best and may be best positioned to do the appeal. Otherwise, you can find a new lawyer (we can probably do it if you want). Take care, Jason

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Ruba December 7, 2016 at 7:57 pm

Thank you Jason for your usual valuable subjects, if the refugee status adjusted to permanent resident status that will be more safe?
And the new status protect the former refugee from deportation if that will happen?
Thank you again

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Jason Dzubow December 9, 2016 at 10:15 am

I think if you can file for a green card (meaning, you have had asylum or refugee status for at least a year and you are otherwise qualified), it is better to do so now. In the past, there were limits on the number of aslees who could file for a green card (10,000 per year, I think) and this created a long wait. I do not know whether the new Administration would try to bring back these limits, but maybe it is better to apply now for the GC just in case. As far as deporting someone, my guess is that it will be difficult if you have asylum, refugee status, or a GC. Take care, Jason

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J Lee December 6, 2016 at 11:29 pm

Hello Mr. Bzubow
I am an asylee and my application for asylum was approved by the Immigration Court. I am planning to register as a permenant resident. I lost my approval letter and I 94 and the attorney who represented me at the Immigration passed away almost a year ago. His wife was very kind to go through all the files hoping to find a copy of my documents. Unfortunetly she could not find my file. Now I would appreciate very much if your would kindly let me know which immigration form should I use to request a copy of my approval letter and I 94 from the immigration court.
Thanks

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Jason Dzubow December 7, 2016 at 2:33 pm

You might want to contact the court to see whether they can help you (a link to the courts is at the right). You might also be able to file a form I-102 to replace the I-94, but in truth, I do not know whether that will work, since it is generally to replace an I-94 obtained upon arrival in the US – you should talk to a lawyer about that. You can also file a Freedom of Information Act request to get a copy of your file: https://www.justice.gov/eoir/freedom-of-information-act. But that might take some months. Take care, Jason

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AJ.Ma December 6, 2016 at 1:02 am

Hi, Jason, thank you for your great blog and all the information.

just one question, I had my asylum case granted in April/2016, so I will file my greencard application when he is in office, should I worry about it ? I read that you said he need to change the law to stop us get a greencard. so how long gonna it take to change a law about greencard policy?

thank you so much. you have a great day.

AJ

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Jason Dzubow December 6, 2016 at 7:31 am

Trump could change things to make it harder/slower to get a green card based on asylum, but I think this is probably under the radar, and you will probably not be affected. I recommend you watch the news for any changes, but if you can, file for the green card as soon as possible, which is the one-year anniversary of receiving asylum (do not file early, or it will be rejected). Take care, Jason

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