Trump’s asylum memo shows the administration is still looking for new ways to break the law

New immigration leadership, same futile strategy.

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The real immigration problem that President Donald Trump and his administration hard-liners face is that their ambitions to all but close the US to new arrivals are severely limited by domestic and international law. Political instability, widespread violence and poverty in Central America mean that neither Trump’s xenophobic rhetoric nor the administration’s cruel deterrence policies – including family separations – has stemmed the number of people arriving at the US’s southern border. Over 103,000 migrants crossed the US-Mexico border last month, around 60 per cent of them Central American parents with children.

Trump’s mounting anger over these immigration numbers, and the growing influence of his far-right policy adviser Stephen Miller, led to the ouster earlier this month of Kirstjen Nielsen, the former head of Homeland Security, allegedly because she was too reluctant to break the law by completely closing the US-Mexico border or reinstating family separations.

Late last night Trump released a memo ordering major changes to US asylum policies and outlining his latest attempt to circumvent America’s legal obligations and restrict immigration. It offers an indication of how the administration plans to change tack on fighting immigration under its new head of Homeland Security, Keven McAleenan.

The memo gives the homeland security secretary and Attorney General William Barr 90 days to formulate regulations that would require asylum-seekers to pay fees in order to have their claims heard, that would ensure that all asylum claims be heard within 180 days of filing and that would bar people from working while their asylum cases are still pending.

The demand is, as many of Trump’s immigration policies are, both illogical and illegal. Under international law, any person who enters the US and presents a credible fear of persecution should they return to their home country is entitled to have their case heard. A person’s right to claim asylum and have one’s case fairly adjudicated should not be limited by their ability to pay an administrative fee. Either the administration would have to waive fees for those unable to pay them, in which case it's not clear why Trump is so enthusiastic about the measure, or it's hard to see how this policy would survive the inevitable legal challenge.

The requirement that asylum cases are processed within 180 days might, under different circumstances, be welcomed by immigration activists and asylum-seekers themselves. Many people spend years in legal limbo, waiting to hear if they can remain in the US and rebuild their lives or if they will have to return to the country they risked everything to flee. But the US immigration courts currently have a backlog of almost 900,000 cases. It seems unlikely that the Trump administration will be willing to invest in a major expansion of the immigration court system, and so the risk is that judges, facing huge pressure to process cases as quickly as possible, will end up denying applicants due process. Immigration lawyers too, may end up struggling to gather the evidence they need to support complex asylum cases within the 180-day window. 

It’s hard to understand what purpose the denial of work permits is intended to achieve – unless it's simply to create more human misery and push still more people into the informal economy. Is the Trump administration engaged in such fantastical thinking that it imagines that, unable to work legally, immigrants will simply return en masse to the hardship they fled? That such a measure might serve as an effective deterrent when nothing else – including the heart-breaking images of children ripped from their parents’ arms by US border guards – has?

We know little about how exactly McAleenan will choose to direct and implement this new directive, and as Dara Lind points out in Vox, it is likely to take longer than 90 days to implement such a dramatic overhaul of asylum processes. But we know enough to surmise that despite the change of leadership at Homeland Security, the Trump administration's immigration policies are likely to follow a similar pattern: we can expect another series of failed attempts to circumvent the law and various inhumane, but ultimately futile, attempts to scare immigrants away. 

Sophie McBain is North America correspondent for the New Statesman. She was previously an assistant editor at the New Statesman.