Asylum in America is all but over. It may never come back

WHEN TOM HOMAN, Donald Trump’s border tsar, addressed the Border Security Expo in Phoenix on May 5th, he had an upbeat message. “We have the most secure border in the history of the nation,” he crowed. The audience was filled with besuited industry types who were hoping to sell the federal government tech and tools to deter migrants and smugglers. Besides the “men and women of Border Patrol”, Mr Homan had one person to thank: “God bless President Trump.”

Mr Trump has been promising to close America’s southern border for more than a decade. In his second term, his method for doing that has been muscular, multifaceted and, ultimately, successful. His border security posture includes finally building his big beautiful wall, hiring more Border Patrol agents, and detaining and deporting migrants with showy cruelty in order to convince others to stay away. But underpinning all of that are his administration’s restrictions on asylum, which are being litigated in the courts. The president is testing how much he can restrict asylum without violating America’s laws and its treaty obligations. If he succeeds it will be partly because the legislation that governs asylum is vague and outdated.

The Refugee Act of 1980 borrowed heavily from the 1951 Refugee Convention and its 1967 extension. America signed the latter. Most of the statute was devoted to creating a programme for resettling refugees who demonstrate a “well-founded fear of persecution”. Lawmakers were reacting to the cold war, and were focused on eastern Europeans and Vietnamese fleeing communism. Territorial asylum—claims made by people already in America or at the border—was an afterthought. “Our immigration experience was one of people who needed protection coming from far away,” explains Doris Meissner, who oversaw immigration policy at the Justice Department (DoJ) at the time.

It didn’t take long for policymakers to realise they had a problem. Weeks after the bill was signed more than 100,000 Cubans set sail for Florida during the Mariel boatlift. “You couldn’t just release all those people,” recalls Ms Meissner. All of a sudden America had to decide what to do when needy people arrived at its borders. It wasn’t until the 1990s that the Clinton administration finally standardised the asylum-application process and hired more asylum officers and immigration judges to shrink a mounting backlog of cases. That worked—for a while. But the pressure on America’s asylum system increased until, under Joe Biden, Customs and Border Protection recorded roughly 300,000 migrant encounters at the southern border in one month alone (see chart 1). Some migrants were fleeing persecution, others were escaping gang violence or troubled economies. Asylum wasn’t assured, but applying was a way to come to America and work for a while. It was a loophole.

The backlash to border disorder powered Mr Trump’s second coming. Now, his asylum restrictions are “the key deterrent” discouraging migrants, argues Andrew Arthur, a former immigration judge and Capitol Hill staffer who supports the administration. Two pending court cases will either reinforce or weaken the president’s policies. In Mullin v Al Otro Lado the Supreme Court will soon decide whether “metering”, or turning away migrants at the border, violates America’s asylum commitments. Barack Obama was the first president to try this, but the practice was standardised by the first Trump administration. Any migrant who is “physically present” or “arrives in” the country can apply for asylum under the law. During oral arguments, the justices seemed inclined to agree with the Trump administration that a non-citizen hasn’t arrived until they have fully crossed the border. That interpretation would allow metering.

The more important case is RAICES v Mullin, which seems destined to wind up at the Supreme Court. On his first day in office Mr Trump declared that border chaos amounted to an “invasion”, which allegedly allowed him to “suspend the entry of all aliens”, including asylum-seekers. In April a federal appeals court in Washington, DC, struck down Mr Trump’s proclamation, arguing that “Congress did not intend to grant the executive the expansive removal authority it asserts”. The Supreme Court, if and when it takes up the case, has been deferential to the president when he has claimed that a certain immigration policy is a matter of national security.

If the courts find that Mr Trump has overreached, it will damage, but not destroy, his asylum blockade. Migrants who cross the border to seek asylum would still end up in immigration courts filled with judges doing Mr Trump’s bidding. (America’s immigration court system is run by an arm of the DoJ, not an independent judiciary.) Just 5% of asylum applications were approved in March, down from 31% when Mr Trump took office (see chart 2). Depending on where those migrants come from, their applications could also be frozen indefinitely. In the meantime they will wait in overcrowded detention centres where at least 18 people have died this year.

Asylum-seekers may try to wait Mr Trump out. Yet there is no guarantee that a future administration would be lenient. Democrats are scarred by Mr Biden’s failures on immigration and have been talking tougher about border security. The Laken Riley Act, passed last year, makes it easier for state attorneys-general to sue the federal government over its immigration policies. Texas, for example, would not hesitate to sue a President Newsom or Ocasio-Cortez should they start releasing border-crossers from detention. Finally, a sneaky clause in the One Big Beautiful Bill Act limits the number of immigration judges to 800, preventing the court system from expanding to handle more asylum claims. “It’s not a recommendation I would have made,” admits Mr Arthur. “But I’m not on Capitol Hill any more.” ■