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Migrants wait for their CBP One asylum appointment to cross into the US at the Chaparral pedestrian border in Tijuana, Mexico November 09, 2023.
© 2023 Carlos Moreno/Sipa via AP Images
Since when are human rights negotiable? The Universal Declaration of Human Rights enshrines the principle that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” US law holds that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…)…may apply for asylum…”
But US Republican leaders are trying to change this decades-old law and, in effect, end the right to seek asylum on US territory by holding up the Biden administration’s supplemental aid bill for Ukraine, Israel and other priorities, which already includes $20 billion to bolster border enforcement. The White House is signaling a willingness to sacrifice refugee protection in pursuit of other US foreign policy goals.
Among other measures, Republican leaders would require asylum seekers transiting through another country to file claims in that country before reaching the US. There is already a “safe third country” provision in US law, but it requires such countries to meet actual standards, such as providing access to full and fair asylum procedures. But many countries have too little capacity to examine claims or to provide protection.
Republican leaders want to expand “expedited removal,” a process that puts new arrivals at or near the border on a fast-track for deportation if they are not able to show a “credible fear” of being persecuted in their home countries. Their proposal would expand expedited removal to people throughout the country for up to two years after arrival. This would open the prospect of country-wide racial profiling and short-cutting due process for immigrants facing deportation.
Republicans would change the standard in credible fear screenings – triggered when asylum seekers express a fear of return to their country of origin – from a “significant possibility” to a “more likely than not” probability of being found to have a well-founded fear of persecution. The change would have serious implications for the standard needed to establish an asylum claim and thus access an asylum hearing before an immigration judge.
In the landmark Cardoza-Fonseca case, the US Supreme Court explicitly rejected a “more likely than not” asylum standard, saying that even “a 10% chance of being shot, tortured, or otherwise persecuted” should be enough to be granted asylum.
How much money the US spends on border security is fair game for negotiation; abandoning the right to seek asylum is not.
