The Trump administration, for over a year, has chipped away at immigrants' ability to claim asylum, undercutting one of the few remaining ways for people fleeing persecution to stay in the U.S.
In the latest change this week, asylum officers could send hundreds of thousands more asylum applications to immigration courts. As a result, more asylum seekers are expected to be denied legal permission to stay in the country.
The rule affects applications filed at U.S. Citizenship and Immigration Services (USCIS), the branch of the Homeland Security Department that oversees legal migration. It comes as the administration has narrowed the scope of how someone can claim asylum or be approved for it, and curbed freedoms and benefits for those waiting for an answer. Asylum approvals are now at their lowest in at least two decades.
The changes come even as hundreds of thousands of TPS or temporary protected status holders are poised to lose the legal ability to work and live in the U.S. and are seeking additional avenues to stay, including asylum. And various other humanitarian programs like refugee resettlement and visas have been limited or paused.
"It's almost like a war on asylum," said Ruby Powers, an immigration attorney in Texas who represents asylum applicants across the country in immigration court and with USCIS. She has represented people from over 43 different countries.
"All of these individuals are trying to open up, share the traumatic events of where they were persecuted or have a future, and have a fair and honest review of their matter. But the rules have changed and very few are going to see approvals," she said.
President Trump's focus on immigration enforcement was clear when he returned to the White House last year: within hours of taking office, he declared a national emergency over what he described as an invasion at the southern border and shut down the cell phone application immigrants used to schedule asylum appointments.
Since then, officials have used the immigration court system, a sprawling arrest and deportation mandate and new congressional statutes to detain, deport and cut benefits for thousands of people who have claimed they are afraid to returning to their home countries for fear of persecution.
The new USCIS rule would let asylum officers refer an asylum application to the immigration court system within the Justice Department, where attorneys say it is now likely to get rejected. The rule takes effect immediately, even as the agency collects public comments. It's meant to reduce the one-million case backlog at USCIS by about 30%.
The White House declined to comment on its approach to asylum. Officials at USCIS have defended the changes, saying the Biden administration made it too easy to get asylum.
"For far too long the asylum system has been exploited for purposes of delay and work authorization, not legitimate claims of protection," USCIS Director Joseph Edlow said in a statement about the latest rule. "America's asylum system exists to protect individuals who genuinely fear persecution and this rule will help ensure that resources are directed to the timely adjudication of those claims instead of to those seeking to use the system as a loophole."
Harder to apply for asylum at USCIS
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Immigrants can apply for asylum at USCIS. They can only do so if they are already physically present in the U.S. — unlike refugees, who apply for the refugee program from abroad. Asylees need to prove a fear of returning to their home country based on one of five protected characteristics: race, religion, nationality, membership in a particular social group or political opinion.
They have to apply within a year of arriving in the country, with some exceptions.
"It is difficult to get," Victoria Neilson, supervising attorney at the National Immigration Project, a legal advocacy group, said about the current status of the program. "The US-Mexico border is almost 'closed.' It's very difficult for anybody to get into the United States and seek asylum in that way."
She noted anyone who arrives by plane could file for asylum, as could those already here. That could open the door for thousands of people who are losing their temporary protected status to apply for asylum and request exceptions to the one-year rule.
There are more than 1 million pending asylum applications at USCIS, and another couple million at immigration courts. The agency paused the review of all applications for several months over the winter, leaving thousands of applicants in limbo. Lawyers said they had clients detained while attending their asylum interviews at USCIS.
"Before, with an asylum pending, you were protected and waited for your day to present your case. But now it's as if there is no protection," Powers, the Texas immigration attorney, said.
Powers said her office has been filing hundreds of asylum applications, including several hundred successfully for Afghan applicants, for example, but has received a higher level of denials under Trump than during past administrations.
"I could probably count on one hand how many approvals we've gotten from the asylum office this year and we're halfway through the year. That's very unheard of," she said. "We normally have a lot of approvals and we're not seeing that with the same quality of case types."
Harder to get asylum approved in immigration courts
Powers' reporting of an increase in asylum denials is not unique.
According to federal data analyzed by the group Mobile Pathways, the immigration court system is granting asylum at the lowest rates over the last two decades. The nonprofit tracks immigration court data and decisions.
The administration has touted the declining approval rate for asylum applications in immigration courts, pointing to its actions to terminate over 170 judges and hire others who are making rulings more in line with the administration's priorities.
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"President Trump took decisive action, replacing activist judges — who slow-walked deportations and granted asylum at sky-high rates — with professionals committed to enforcing the law, not undermining it," according to a press release from April. "President Trump promised to end the open borders nightmare — and he is delivering on that promise with unrelenting force."
The decisions have aimed to cut the backlog of cases — though there are still some 2.4 million pending asylum applications, according to the Justice Department.
"Reducing the immigration court backlog remains one of the highest priorities for this administration," said a DOJ spokesperson in a statement to NPR. "The Justice Department is restoring integrity to our immigration system by hearing cases fairly, expeditiously, and uniformly, in accordance with the law."
Matt Joseph spent 12 years at the Department of Homeland Security, including as an asylum officer. He says USCIS has always faced huge pressure to reduce the mounting backlog of cases, but hasn't received the resources.
"One persistent issue that's only gotten worse with time is the pressure to complete cases that literally have life-and-death stakes," Joseph said. "And there's a constant under-resourcing of the asylum office both in terms of personnel and other resources to get through these caseloads in an efficient manner."
Past administrations have also sought to curb asylum applications — including an Obama-era policy known as metering, which allowed border patrol agents to turn away people before they could physically enter the U.S. to claim asylum. The practice was expanded during Trump's first term, and the Supreme Court in June upheld the policy — though the ability to enter and claim asylum at the southern border was already largely limited.
Joseph left the agency last spring and now works as senior policy counsel at the Center for Gender and Refugee Studies, an advocacy and legal group that defends refugee rights. He said this administration's policies to limit asylum go beyond what past presidents have done.
"What you're really seeing is a concerted attack on asylum from all fronts by the administration," Joseph said. "They're really trying to keep people out of the asylum process to begin with. And if they are already in, they are trying to find a way to take people out of it."
Harder to appeal a decision
Immigrants whose applications are denied have a chance to appeal or seek other ways to avoid getting deported.
Appeals made in immigration court go to an administrative panel called the Board of Immigration Appeals, which is made up nearly entirely of Trump appointees. Under this administration, the board has issued a record number of precedent-setting decisions — about a third that limit or change the interpretation of asylum.
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The asylum-related decisions issued by the BIA vary in scope. Some encourage third-country deportations. Others add additional scrutiny around claims of violence and persecution.
There have also been restrictions on the definitions around protected classes to make it harder to grant asylum around gender-based claims, the geography of the country and politically-based claims. Many of the BIA judges in their decisions bring up alleged civil and criminal infractions as a reason to not grant asylum and the consequences of new asylum fees.
"Part of the base strategy [is] to just pile up so many losses that it's hard for non-citizens to even argue that they merit a hearing before the immigration judge," said Neilson, from the National Immigration Project.
Life gets harder while waiting
Other policy changes across the federal government have made it harder for asylum seekers to live in the U.S.
A bill congressional Republicans passed last summer, for the first time imposed fees for asylum applications. It also added a fee for work authorization applications, and a yearly fee for each year an asylum application is pending. Such fees could total thousands of dollars for immigrants and their families waiting in limbo for years.
The legislation also stripped eligibility for asylum applicants and recipients to get benefits from the Supplemental Nutrition Assistance Program and healthcare programs.
Separately, a newly proposed regulation from DHS would make asylum seekers wait for a longer period of time — for a year, up from five months — to apply for a work permit. The rule would also pause the processing of new work permits until USCIS reduces its asylum backlog.
Advocates warn the rule could result in more denials for people seeking to renew their work permits, risking the status of more than 2 million people already in the labor force.
Conchita Cruz, co-executive director of The Asylum Seeker Advocacy Project, said the group has members who can't work legally because it has taken over a year to process their work permit renewals.
"Making it so that individuals have no ability to support themselves or their family does make it a lot harder to seek asylum," Cruz said.
DHS has also proposed another rule that would require additional biometric screening for people seeking a work permit, which advocates said could cause further delays in renewals, and bar those who have been arrested and not convicted from renewing their permits.
Despite all the changes aimed at discouraging asylum applicants from staying in the U.S., advocates like Cruz said it's unlikely many will leave the U.S.
"Asylum seekers don't have a choice. If they're safe here, they're likely going to stay here rather than risk their lives" by going back to their home country, Cruz said.
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