How Trump can reverse the tide of foreign asylum seekers

President-elect Donald Trump can reverse the recent huge growth in foreign asylum applications quickly and without congressional action.

Over the past 20 years, the volume of foreigners’ applications for asylum in the US – like the number of applications for asylum in European countries – has increased by more than an order of magnitude.

The annual number of applicants in both has mushroomed from a tiny fraction of the number of non-asylum-seeking illegal immigrants to approach the latter number in the US and to exceed the latter figure in Europe.

In 2023, 2.6 million foreigners were estimated to be seeking asylum in the US. Most of them were legally present in the US without the right to work, but many are thought to have been working illegally.

Those 2.6 million foreigners do not include the foreigners already granted asylum and living in the US with the legal right to work. Those 2.6 million foreigners also do not include former asylum applicants who have remained in the US after being denied asylum, many of whom are thought to be working illegally.

Asylum industrial complex

This rapid growth in asylum applications has been facilitated by an industry of immigration lawyers and human rights activists, both in NGOs and the federal government.

In recent decades, the asylum industry has managed to give the status of legally admitted asylum applicants to an ever-growing number of foreigners who otherwise could not have entered the US (or Europe) legally. 

The asylum industry has done this chiefly by inducing asylum refugee policy administrators and asylum application adjudicators in the executive branch to construe the scope of the term “persecution” far more broadly than it was previously.

Still-in-force provisions of the Immigration and Nationality Act (INA) of 1952, codified in part at 8 U.S.C. 1101(a)(42), make “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” a prerequisite of entitlement to refugee status and hence to asylum in the US.

Forty or more years ago, “persecution” was generally regarded as comprising only action by or promoted by a state, a religious entity or some other organized group, such as the treatment of Jews by Nazi Germany, or the mass killings of Salvadoran peasants by death squads affiliated with both the army and a major political party, or the mass killings of Christians by Muslims in mostly-Muslim regions of Nigeria.

Over the past 30 years, the scope of “persecution” has been expanded by the asylum industry to include a minor’s being beaten by his father as punishment for homosexual activity, or denial of access to gender-changing drugs or surgery to anyone who claims to have been assigned the wrong gender at birth.

Inasmuch as nearly all African and Islamic societies frown on both homosexual activity and gender-changing, an immigration lawyer can now easily concoct a plausible claim for asylum for almost any African or Muslim.

Moreover, this is only one of many parameters in which the scope of what is deemed to constitute “persecution” for purposes of asylum law has expanded in recent decades.

A cursory perusal of the “Country Reports on Human Rights Practices” published annually by the US Department of State over the past four decades—e.g., in 1983, 1993, 2003, 2013 and 2023—can give a sense of how much what is deemed to constitute “persecution” has expanded in recent decades.

Those reports, which are routinely cited as authoritative evidence in applications for asylum in the US, have grown far longer, covering a broader range of activities that can be construed as “persecution” with every passing decade.

Reversing the flow

To reduce the inflow of illegal immigrants without also reducing the inflow of asylum applicants is nearly pointless. To do so will further increase the proportion of otherwise illegal immigrants presenting themselves as asylum applicants. 

It will not reduce the inflow of foreigners entering and remaining in the US without either immigrant visas or permanent resident status. It will do little even to slow the growth of that inflow.

Fortunately, President-elect Trump can greatly reduce the volume of plausible claims for asylum by issuing, early in his second term, an executive order instructing all US executive branch officials – including border enforcement officials, ICE’s asylum application adjudicators and the DOJ’s immigration court judges – to use or construe the term “persecution,” in context of refugee and asylum matters, no more broadly than it was generally construed and used in 1952.

That’s the enactment year of the above-cited provision of the INA that uses that term to govern eligibility for refugee status, a prerequisite for asylum.

The sole statutory expansion of the scope of the term “persecution” in that context, enacted in 1996, requires that the INA’s use of “persecution” be construed as including “persecution for resistance to coercive population control methods,” specifically forced sterilization and forced abortion. 

However, since such population control methods are no longer practiced anywhere, that expansion of the scope of “persecution” has no current application. The executive order I suggest might make note of this.

An executive order re-narrowing executive branch use and construction of the term “persecution” in context of refugees and asylum matters might usefully also instruct all executive branch officials to use or construe the term “internationally recognized human rights” to include only rights either (1) enumerated by the UN Declaration of Human Rights, in favor of which the US voted in 1948, or (2) asserted by international agreements to which the US is party.

Because the State Department uses the term “internationally recognized human rights” to define the scope of coverage of its “Country Reports on Human Rights Practices”, restricting the scope of that term as suggested in the previous paragraph would re-narrow the scope of coverage of those reports, which are commonly cited in applications for asylum in the US.

Such an executive order can be rendered more defensible in US courts by withdrawing the US from its accession to the 1967 Protocol Relating to the Status of Refugees, an international agreement administered by the UN Refugee Agency. That protocol is the only asylum-related international agreement to which the US is party.

The UN’s Global Compact on Refugees (GCR), adopted by the UN General Assembly (UNGA) in 2018, despite the US vote against it, is not an international agreement. Like all other UNGA actions, it is not binding on UN member states; it is merely hortatory.

By contrast, the 1967 Protocol Relating to the Status of Refugees is a binding agreement to which the US is party. It is a protocol to the 1951 UN Convention Relating to the Status of Refugees, which concerned only refugees from persecution occurring before 1951, and to which the US has never been party.

In 1968, the US became party to the 1951 convention’s 1967 protocol, which expanded the 1951 convention’s scope to include refugees from persecution committed since 1951 and in the future.

Refugee withdrawal

US withdrawal from that 1967 protocol would remove: (1) grounds on which diverse foreign entities might otherwise claim status in US courts to challenge an executive order re-narrowing the use and construction of “persecution” by executive branch employees in refugee and asylum matters; and (2) grounds on which lawyers for asylum applicants might otherwise argue in US courts that a re-narrowed definition of “persecution” is inconsistent with US obligations under the 1967 protocol.

Article 9 of that 1967 protocol provides that any state party to the protocol may at any time denounce that protocol (i.e., withdraw from that protocol) simply by notifying the Secretary-General of the UN and that its denunciation of that protocol shall take effect one year later.

The US president has long been deemed by the US judiciary to have plenary authority, implied by Article II, section 2 of the US Constitution, to withdraw the US from any treaty or international agreement. President Trump used this authority to withdraw from the Open Skies Treaty in 2020.

Although presidential authority to withdraw the US from an international agreement arguably might be limited by enacted legislation, no limits on presidential authority to withdraw from the 1967 refugee protocol appear to have been enacted.

To stop admitting people to the US who are asylum applicants or who declare at the border that they intend to apply for asylum, and who could apply for asylum in Mexico or Canada, would also help reduce the number of asylum applications by removing an incentive to file them. 

However, that has already been widely publicized and seems well-known to President-elect Trump and his advisors.  Moreover, that alone will not suffice to reverse the recent rise in asylum applications.

Ichabod, a pseudonym, is a former US diplomat.