Asylum Under Attack

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to obliterate asylum protection. Building on the actions from 2017 forward, even in its waning days, the Trump Administration proposed and finalized numerous sets of regulations to undermine and eviscerate asylum protection.A combination of public outcry and litigation halted or limited some of the Trump Administration’s attempts to under-mine asylum protection. Other policies went into effect and some remain in effect under the Biden Administration, with dramatic results. By tracing the sustained series of policies, regulations, and other actions taken by the Trump Administration against asylum seekers, this article not only bears witness to the attacks on the asylum system, but also offers a roadmap of policies to be undone by the Biden-Harris Administration. Taking into account the public commitments made by President Biden during his campaign and post-election on asylum issues, this article outlines the immediate and long-term actions that the Biden-Harris Administration must take. Initial actions by President Biden, including an Executive Order addressing asylum issues and the U.S. Citizenship Act of 2021 introduced in Congress are promising, but the “COVID ban” on asylum seekers under Title 42 of the Public Health Act remains in effect. This article sets forth what is necessary to not only right the wrongs committed by the Trump Administration, but to provide meaningful asylum protection and to reassume the United States’ role as the global leader in refugee protection