Trump's Asylum Policy: Legal Or Lawless?

The Trump administration's policies on asylum seekers have been widely criticised by immigration advocacy groups, legal experts, and human rights advocates. The American Civil Liberties Union (ACLU) has sued the Trump administration multiple times, arguing that its actions violate US and international law and endanger the lives of asylum seekers. The administration's policies include banning asylum seekers from certain countries, imposing fees on asylum applications, and denying protection to asylum seekers who fail to apply within tight deadlines. These policies have been ruled unlawful by US courts on several occasions, yet the administration continues to implement new restrictions on asylum seekers, prompting ongoing litigation and widespread concern about their legality and ethical implications.

The Trump administration's new restrictions on asylum seekers

The Trump administration has implemented a series of restrictive measures on asylum seekers, causing widespread concern among human rights advocates and immigration lawyers. These measures have been enacted through executive orders and policy changes, which have been challenged in court by various organisations, including the American Civil Liberties Union (ACLU).

Ending Asylum Access at the Southern Border

One of the most significant changes is the effective ending of asylum access at the southern border with Mexico. This was achieved through a series of executive orders and policy changes, including:

• Suspending the ability of migrants to ask for asylum.
• Shutting down the CBP One app, which allowed nearly 1 million people, many of them asylum seekers, to legally enter the US.
• Implementing the "Asylum Ban", which bars individuals who do not present themselves at a port of entry from applying for asylum.

Increasing Fees and Wait Times for Asylum Applications

The Trump administration has also made it more difficult and expensive for asylum seekers to apply for asylum. This includes:

• Imposing an 800% fee increase for appeals.
• Proposing to charge a $50 fee for asylum applications.
• Extending the time asylum applicants must wait before submitting an application for a work permit from 180 days to 365 days.

Labelling Asylum Seekers as a "Danger to National Security"

In a highly controversial move, the Trump administration has also labelled asylum seekers as a "danger to national security" under the pretense of public health. This has been used as a justification for implementing restrictive measures, such as:

• The "public health ban", which excludes asylum seekers who flee from or travel through a country with a high prevalence of infectious or contagious diseases.
• The "transit ban", which bars asylum seekers who travelled through another country en route to the US.

Impact on Asylum Seekers

The consequences of these new restrictions have been severe for asylum seekers. Many have been left stranded in Mexico, with their appointments to apply for US asylum cancelled. This has pushed some asylum seekers to resort to more dangerous means of reaching the US, such as riding freight trains, hiring smugglers, and dodging authorities.

The restrictions have also put asylum seekers at risk of harm, as they are increasingly targeted by cartels and kidnapping gangs. In addition, the restrictions have made it more difficult for asylum seekers to access essential services such as emergency shelter, legal assistance, and healthcare.

The legality of Trump's asylum ban at the southern border

In 2025, the American Civil Liberties Union (ACLU) sued the Trump administration over its ban on asylum access at the southern border. The lawsuit, filed in the US District Court for the District of Columbia, challenged Trump's executive action suspending asylum in the US. The suit was joined by three immigrant rights groups: the Refugee and Immigrant Center for Education and Legal Services (RAICES), Las Americas Immigrant Advocacy Center, and Florence Immigrant and Refugee Rights Project.

Trump's order prohibited migrants at the southern border from claiming asylum and allowed immigration officers to quickly "repel" or "remove" them. The lawsuit alleged that Trump's actions went against protections provided by Congress and backed by the courts. It argued that the government was "returning asylum seekers—not just single adults, but families too—to countries where they face persecution or torture, without allowing them to invoke the protections Congress has provided".

Legal experts and immigration attorneys argued that Trump's new restrictions on asylum seekers violated US and international law. They claimed that the rule, which required migrants to have made an asylum claim in a previous country en route to the US, was an "end run" around the asylum laws passed by Congress. Elora Mukherjee, a professor of law at Columbia University, stated that "the President can't just rewrite the law".

In response to the lawsuit, the White House defended Trump's actions, stating that he had been "given a resounding mandate to end the disregard and abuse of our immigration laws and secure our borders". Trump's order also cited the Immigration and Nationality Act, which gives presidents the authority to suspend the entry of any group deemed "detrimental to the interests of the United States".

Trump's asylum ban was part of a wider strategy to carry out mass deportations of immigrants and lock out immigration access at the southern border. This included ending the Biden administration's program that allowed 1,450 people a day to schedule an appointment to seek protection in America. The ban was also implemented alongside a shutdown of a mobile app used by asylum seekers to schedule appointments.

The legality of Trump's asylum ban was contested, with federal judges ruling differently in separate cases. While one judge sided with the Trump administration, another judge in San Francisco heard arguments brought by the ACLU. Additionally, the asylum ban was challenged by advocacy groups and immigrant rights organizations, who argued that it put people fleeing war and persecution in harm's way and violated US and international asylum laws.

The Trump administration's use of COVID-19 to further detain asylum seekers

The Trump administration's response to the COVID-19 pandemic has been used to justify the suspension of the right to seek asylum. Border closures and states of emergency have been implemented, making it almost impossible for asylum seekers to travel to the US to access protection.

On March 20, 2020, the US announced travel restrictions that allow border agents to deny entry to almost all asylum seekers. The order, issued by the Centers for Disease Control and Prevention (CDC), authorizes the immediate deportation of undocumented aliens arriving overland and has been extended multiple times. The order operates outside the regular immigration removal process, with asylum seekers sent back without a hearing or the opportunity to raise protection concerns.

The Trump administration's use of a sweeping public health order has effectively ended territorial asylum in the US, at least for those crossing land borders. This has resulted in the mass detention of asylum seekers, with tens of thousands jailed by the Department of Homeland Security (DHS). This includes survivors of torture, political dissidents, student organizers, human rights activists, LGBTQ+ people, and survivors of gender-based violence.

The suspension of the right to seek asylum during the pandemic has been criticized as an example of "presidential overreach" and a violation of international law and human rights. It has been argued that the pandemic has been used as a cover for policy priorities that would otherwise be unfeasible. There are concerns that these temporary measures will become permanent, further entrenching the end of the right to seek asylum.

The Trump administration's agreement with Honduras, effectively blocking asylum seekers from reaching the US

In September 2019, the Trump administration signed an agreement with Honduras that would effectively prevent asylum seekers from reaching the US. The deal was signed by Acting Secretary of Homeland Security Kevin McAleenan during the United Nations General Assembly in New York. It followed similar agreements with El Salvador and Guatemala.

The agreement would allow the US to send asylum seekers from the southern border to Honduras, a country with one of the highest murder rates in the world. The details of the deal were not released, and it is unclear when it would take effect. However, a senior official with the Department of Homeland Security stated that the accord was intended to help increase asylum and protection capacity in Central America, slow migration, and enhance security in the region.

Critics of the agreement argued that migrants are already fleeing tremendous violence in Central American countries, and sending them to Honduras could further endanger them. They also questioned the capacity of Honduras' asylum system to handle the additional claims. Michelle Brané, director of migrant rights and justice at the Women's Refugee Commission, stated that the agreement was "continuing to undermine human rights and endanger thousands of families, women, men, and children."

The American Civil Liberties Union (ACLU) filed a lawsuit challenging President Donald Trump's executive action suspending asylum in the US. The lawsuit, presented in the US District Court for the District of Columbia, argued that Trump's effort to unilaterally ban access to asylum was "unlawful and unprecedented" as it overrode Congress's authority. The suit was joined by three immigrant rights groups: the Refugee and Immigrant Center for Education and Legal Services (RAICES), Las Americas Immigrant Advocacy Center, and Florence Immigrant and Refugee Rights Project.

The legality of Trump's asylum restrictions under US and international law

On July 15, 2019, the Trump Administration announced new restrictions on asylum seekers, stating that migrants coming from Central America who have passed through other countries on their way to the US will no longer be able to claim asylum. This change took effect on July 16, 2019.

US Law

According to US law, a migrant cannot be barred from seeking asylum based on where they are from. Congress established that the US can enter into "safe third country" agreements with other nations, where the third country would process asylum claims instead of the US. However, at the time of the announcement, the US only had such an agreement with Canada.

The American Civil Liberties Union (ACLU) argued that the Trump Administration had violated the rules set in place by Congress on establishing a "safe third country". They also stated that Trump's actions went against protections provided by Congress and backed by the courts.

International Law

Internationally, the new rule does not align with the conditions for a "safe third country" agreement as detailed by the UNHCR, the UN Refugee Agency. The US may begin seeing lawsuits from countries and international courts such as the Inter-American Court of Human Rights if migrants are returned to unsafe countries.

The UNHCR stated that the new rule is not in line with international obligations and raises the burden of proof on asylum seekers, who must prove persecution beyond the international legal standard.

Legal experts and immigration attorneys stated that the new rule violates both domestic and international law. The Mexican government also disagreed with the new US asylum rule, stating that it limits access to asylum and refuge for people who fear for their lives or safety in their country of origin.

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