Keith Mack
The US President can enforce asylum laws but cannot change them without the required congressional action. The US Congress has incorporated the international definition of a refugee into US immigration law. Asylum is a protection granted to individuals who can demonstrate that they are unable or unwilling to return to their country due to a well-founded fear of persecution. While the President can issue regulations that interpret the asylum statute's provisions restrictively, only Congress can change or eliminate a federal statute through legislation.
| Characteristics | Values |
|---|---|
| Who can change asylum laws? | Congress |
| Who can enforce asylum laws? | The President |
| Who can challenge asylum laws? | Federal courts |
| Who can propose changes to asylum laws? | The President |
| Who can issue regulations on asylum laws? | The President |
| Who can interpret asylum laws? | The President |
| Who can change the refugee cap? | The President |
| Who can determine asylum eligibility? | The President |
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What You'll Learn
- The US President can enforce asylum laws but cannot change them without congressional action
- Congress has the power to change asylum laws as they are part of the Immigration and Nationality Act
- Asylum seekers can appeal to the Board of Immigration Appeals and then to a US circuit court
- The President can direct the DHS to issue regulations to change the asylum process without changing the law
- Asylum is a protection for foreign nationals in the US who meet the international law definition of a refugee
The US President can enforce asylum laws but cannot change them without congressional action
The US President can issue executive orders and regulations to enforce asylum laws, but they cannot change these laws without congressional action. Asylum is part of the Immigration and Nationality Act, a federal statute passed by Congress. A federal statute may not be changed or eliminated through executive action or regulations. Providing asylum is also part of the US's treaty obligations under international law.
While the President can enforce asylum laws, only Congress can change them. For example, President Trump's memo directed the DHS to issue regulations within 90 days that made changes to the asylum process. Asylum seekers would have to pay a fee, and those who entered the US unlawfully would be barred from receiving employment authorization before their asylum application was granted. However, the memo did not directly change asylum law. The US's long-standing commitment to providing refuge for those fleeing violence and persecution is backed by international and domestic law.
The US President can interpret the asylum statute's provisions restrictively, but their regulations must be consistent with the existing statute and cannot contradict it. For instance, Trump's administration has attempted to create or repeal immigration law without the required congressional action, mainly through enforcement tools such as executive orders and regulation changes. These changes have been reversed, stopped, or modified by federal courts.
The President can also set a cap on refugees, as seen when the Trump administration cut the refugee cap from 110,000 in fiscal year 2017 to 30,000 in fiscal year 2019. They can also issue proclamations that suspend the right to asylum for those arriving at the southern border away from an official port of entry. For example, President Biden issued a proclamation in June 2024 that temporarily suspended the right to asylum for those arriving at the southern border without a CBP One appointment.
Any changes to asylum laws or policies must consider the existing asylum statute and international obligations, such as the 1951 Refugee Convention, which the US committed to following in 1967.
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Congress has the power to change asylum laws as they are part of the Immigration and Nationality Act
In the United States, asylum laws are part of the Immigration and Nationality Act, a federal statute passed by Congress. This means that Congress has the power to change asylum laws, as they are part of this Act. While the President can enforce asylum laws, they cannot change them without the required congressional action. Any changes to federal statutes, such as the Immigration and Nationality Act, must be made through legislation passed by Congress.
Throughout his presidency, Trump's immigration policies have clashed with immigration laws and the Constitution. Trump has attempted to create and repeal immigration laws without congressional approval, primarily through executive orders and regulatory changes. For example, in January 2025, President Trump issued Proclamation 10888, which indefinitely suspended the right to seek asylum at the southern border, declaring arriving migrants an "invasion." This proclamation was challenged in court as it ignored protections put in place by Congress.
Trump's administration also issued a memo proposing changes to the asylum process, including requiring asylum seekers to pay a fee and barring them from receiving employment authorization before their application is granted. While the memo did not directly change asylum law, it directed the Department of Homeland Security (DHS) to issue regulations that could be subject to lawsuits and judicial review.
The distinction between refugees and asylum seekers is also important in this context. While there is a cap on refugees set by the President, there is no cap on asylum seekers. This distinction further highlights the role of Congress in shaping asylum laws and policies.
It is worth noting that asylum is a discretionary status, meaning that even if individuals meet the definition of a refugee, they can still be denied asylum. The asylum process in the United States involves multiple government agencies, and it is essential to understand the eligibility requirements and application process.
In summary, Congress has the power to change asylum laws as they are part of the Immigration and Nationality Act. While the President can enforce these laws and propose regulatory changes, any modifications to the underlying legislation require congressional action. The complex nature of the asylum process and the involvement of multiple government agencies further emphasize the importance of congressional oversight and legislative action in shaping asylum policies.
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Asylum seekers can appeal to the Board of Immigration Appeals and then to a US circuit court
In the United States, asylum laws are governed by the Immigration and Nationality Act, a federal statute passed by Congress. While the President can issue regulations that interpret the asylum statute's provisions restrictively, they cannot change the law itself without a majority in Congress.
If an immigration judge denies an asylum case, asylum seekers have the right to appeal to the Board of Immigration Appeals (BIA) within 30 days of the decision. This is done by filling out and submitting a Notice of Appeal (Form EOIR-26). The BIA must receive the appeal within 30 days of the judge's decision, and asylum seekers cannot be deported while their appeal is pending.
If the BIA upholds the denial of the asylum case, asylum seekers can further appeal to a US circuit court. This process is generally faster as it is a "paper review," meaning no new evidence is admitted. Work permits are typically extended during this appeal process, but the removal process continues if the BIA upholds the denial.
The right to seek asylum is protected by international law, and the US has obligations under international treaties to provide asylum protections. However, the US government has faced criticism for severely restricting access to asylum at the border.
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The President can direct the DHS to issue regulations to change the asylum process without changing the law
The U.S. President can direct the Department of Homeland Security (DHS) to issue regulations that change the asylum process without changing the law. This was evident in the case of President Trump, who issued a memo directing the DHS to make several changes to the asylum process within 90 days. These changes included requiring asylum seekers to pay a fee, barring them from receiving employment authorization before their application is granted, and reassigning immigration officers as needed. While the memo did not directly alter asylum law, it prompted the DHS to issue regulations that may be subject to legal challenges.
It is important to note that asylum is part of the Immigration and Nationality Act, a federal statute passed by Congress. While the President can enforce the law, any modifications to this federal statute necessitate Congressional action. The Trump administration's attempts to change immigration law unilaterally were met with resistance, with federal courts reversing, halting, or modifying their actions.
The President's power to direct the DHS to issue regulations allows for adjustments to the asylum process without altering the underlying law. These regulations must be consistent with the existing statute and cannot contradict it. However, they can interpret the asylum statute's provisions in a restrictive manner. For example, the Trump administration's changes aimed to deter low-probability asylum seekers and address perceived “rampant abuse” of the system.
The distinction between refugees and asylum seekers is also significant. While there is a cap on refugees set by the President, there is no cap on asylum seekers. This distinction impacts how individuals are processed and the resources allocated to their cases. The administration's focus on asylum cases has contributed to a backlog of refugee cases.
The President's directives to the DHS can have a substantial impact on the asylum process, shaping the requirements and conditions faced by asylum seekers. However, these directives must operate within the boundaries of the law set by Congress. Any regulations issued must be scrutinized to ensure they do not exceed the President's authority or infringe on the rights of asylum seekers as outlined in the Immigration and Nationality Act.
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Asylum is a protection for foreign nationals in the US who meet the international law definition of a refugee
Asylum is a protection granted to foreign nationals in the US who meet the international law definition of a refugee. The right to seek asylum was incorporated into international law after World War II. Congress adopted key provisions of the Refugee Convention (including the international definition of a refugee) into US immigration law when it passed the Refugee Act of 1980. The 1951 UN Refugee Convention (and its 1967 Protocol), which the US is obligated to follow as a signatory, protects refugees from being returned to countries where they risk persecution.
The UN's 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees define a refugee as a person who is unable or unwilling to return to their home country and cannot obtain protection in that country due to past persecution or a well-founded fear of being persecuted in the future "on account of race, religion, nationality, membership in a particular social group, or political opinion". This definition was incorporated into US immigration law in the Refugee Act of 1980.
Under US law, to apply for asylum, an individual must be physically present in the country or arrive at a port of entry. To win asylum, an individual must provide evidence demonstrating that they have suffered persecution in their home country on account of a protected ground in the past and/or that they have a well-founded fear of future persecution in their home country. Asylum seekers may be of any age, gender, socioeconomic status, or nationality, although most come from regions suffering from conflict, disaster, and weak rule of law.
The US government has severely restricted access to asylum at the border. For example, in 2025, President Trump issued a proclamation indefinitely suspending the right to seek asylum at the southern border, declaring that people arriving at the border are an "invasion". However, it is important to note that asylum is part of the Immigration and Nationality Act, a federal statute passed by Congress. While the Trump administration can issue regulations that interpret the asylum statute's provisions restrictively, it cannot change the law itself without cooperation from a majority in Congress. Executive orders and regulations can be challenged in court, especially if they conflict with the asylum statute, any other federal laws, or a person's constitutional rights.
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Frequently asked questions
Yes, the president can change asylum laws. For example, in 2025, President Trump suspended the asylum system as part of his crackdown on illegal immigration.
Yes, Congress can also change asylum laws. For example, in 2005, Congress passed the Real ID Act, which imposed further limitations on the asylum process.
The process for seeking asylum in the United States can be complex and involve multiple government agencies. Asylum seekers must provide evidence demonstrating that they have suffered persecution in their home country and/or that they have a well-founded fear of future persecution. This evidence typically includes the individual's testimony and any other available supporting documentation.
