- The Washington Times - Sunday, November 1, 2020

The Homeland Security and Justice departments are on the verge of finalizing a new asylum crackdown on “frivolous” claims, with two new regulations demanding migrants meet a tougher standard for proving persecution, The Washington Times has learned.

As officials worry about another asylum surge like the caravans of families that overwhelmed the border in 2018 and 2019, the new rules could help head off a repeat, blocking tens of thousands of bogus claims earlier in the process and denying them a foothold in the U.S.

The regulations are expected to be announced any day.

One would tighten the definition of political persecution, requiring migrants to show that their fear stems from their home government’s policies or opinions.

The other would finalize what’s known as the third-country transit bar, creating a presumption that if migrants from elsewhere crossed through Mexico en route to the U.S., they are not valid asylum-seekers. Otherwise, they should have claimed asylum in Mexico, which is generally safe for those fleeing persecution.

“This is about making the system work for the people that it’s supposed to work for,” a senior Homeland Security official told The Times. “There are other pathways forward for people who want to come here for economic reasons … But gaming the asylum system and our humanitarian mission for the purpose of economic betterment is simply outside what we should be doing.”

Asylum is the humanitarian protection granted to people fleeing persecution who already have made it to U.S. soil. Refugees are similar, but they apply from outside the country.

To win asylum, migrants are supposed to have faced or have a well-founded fear of facing persecution because of race, religion, nationality, political opinion or membership in a social group, and whose home government is either behind the persecution or so indifferent as to be culpable.

Homeland Security officials say the terms have been stretched to now include gang intimidation or general fear of crime.

For Central Americans, the senior official told The Times “that’s everyone, pretty much, so that’s not a particular social group as we understand it.” The official said requiring migrants to show their persecution is tied to the opinion of a unit of government should winnow down that group.

That doesn’t mean gang cases would never be approved, but it should give asylum officers, who work for the U.S. Customs and Immigration Service, and immigration judges, who work for the Justice Department, clearer guidance for deciding cases.

“To have this actually for the first time in black and white regulation is going to make such a difference because it’s going to take away from the activist courts the ability to surmise what Congress meant in the statute,” the senior official said.

The third-country transit bar has been under construction for several years. The administration released an interim final rule in 2019, but it was blocked this summer by several federal courts. One of their objections was that it didn’t go through the notice-and-comment period required for significant regulatory changes, and the judges rejected the government’s excuses for skipping that step.

The administration has now gone through notice and comment, and will soon issue the final rule.

Under the transit bar, the theory is that someone leaving Honduras who travels through Guatemala and Mexico to reach the U.S. is more likely to be a traditional migrant, seeking to reunite with family or to get a job here. If he was really seeking to flee government persecution, either of the other two countries could have been safe landing spots.

During the year the transit bar was in effect, before the judge’s ruling, it may have been responsible for cutting initial asylum fear claims by more than a third.

Nearly 90,000 people filed comments as part of the notice-and-comment period this summer.

Some labeled the proposal “racist,” while others called it unworkable.

“There are no words to describe how devastating passing this amendment would be,” wrote one anonymous commenter. “Should the innocent need to suffer so that the bad are punished?”

Another called it “an overtly blatant act of violence to the international community.”

Under the American asylum system, migrants showing up at the border are able to assert a “credible fear” of being sent back home. According to the law, they can be held in detention while their case is decided, but in reality there’s not enough bed space, so they are generally released.

Smugglers realized this and began to advertise to would-be migrants that they could exploit the system, using specific words to trigger the “credible fear” process and gain a foothold in the U.S. Screen-in rates ran as high as 70%.

Many wouldn’t bother to apply for asylum, simply disappearing into the shadows. Those that did apply were usually rejected by the immigration court. The approval rate was about one in five. For Central American families, it ran even lower, at 12%.

Homeland Security officials say the mismatch between the screen-in rate and the eventual approval rate is a problem.

“What does that say? That says a lot of these people are coming here not because they have a legitimate claim but because they’re trying to find work and have a better economic chance than they felt they had in their home country,” an official told The Times.

Bogus claims are more than a bureaucratic nuisance, officials say. They clog the system, forcing valid asylum-seekers fleeing desperate circumstances to wait.

In the immediate term, asylum claims are less of an issue.

Under a Centers for Disease Control and Prevention order tied to the coronavirus pandemic, border authorities are able to immediately expel migrants who attempt to cross without permission. That’s cut the rate of successful unauthorized crossers dramatically.

Several other Trump policies devised over the last couple of years also cut into the asylum surge. The Migrant Protection Protocols (MPP), which allowed the government to return people to Mexico to await their immigration court dates, and deals with Central American countries to speed up repatriations helped.

The U.S. Supreme Court is slated to hear a challenge to the MPP this term.

Border officials are pondering when and how to lift coronavirus shutdown orders, but warn they’re already seeing illegal immigration numbers tick up, suggesting a pent-up demand that could mean a new wave of asylum-seekers.

Immigrant-rights groups complain that the network of Trump policies have deterred legitimate asylum seekers.

Joseph Edlow, the deputy director for policy at USCIS, said in an interview with The Washington Times last month that he rejected that.

“I don’t see any evidence that we are scaring people off,” he said. “You’re still seeing a large number of people coming up, asking for protection, and every one of those individuals is getting a chance to speak to an asylum officer.”

He also said the decisions are made on a case-by-case basis, and each denial is reviewed by a supervisor. Those who are prevented are people who were coming for more traditional immigration reasons, such as jobs, rather than for true humanitarian protection.

There’s a reason many illegal immigrants attempt to pursue the asylum route. Not only does it buy them an entry into the country and freedom to move around and disappear into the shadows, but it also usually includes full legal permission to work while their cases are in limbo.

Nearly 80% of asylum-seekers to ask for work permits are approved, and those who seek renewals have a 97% rate of success. That means hundreds of thousands of additional workers injected into the economy — many of whom are here on bogus claims that will eventually be rejected.

In fiscal year 2020, which ended Sept. 30, USCIS approved more than 445,000 work permits for asylum-seekers.

The Trump administration has taken steps to tighten the rules by requiring asylum-seekers to wait a year before they can apply for a permit. Before that change, which took effect this summer, asylum-seekers could get their first work permit done in about six months.

Like so much of the rest of the Trump administration’s immigration moves, those changes are being litigated in court.

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