Trump must obey decades-old asylum law

A woman and her daughter wait just outside the temporary shelter set up at Unidad Benito Juarez in Tijuana where refugees are temporary sheltered.
A woman and her daughter wait just outside the temporary shelter set up at Unidad Benito Juarez in Tijuana where refugees are temporary sheltered. TNS

President Donald Trump, determined to demonstrate he is tough on immigration, is attempting to eliminate a path to legal immigration status that American leaders have respected for more than three decades.

Last month, Trump issued an order that would prohibit people who enter the country unlawfully from seeking asylum because they fear persecution. A federal judge rightly concluded that the order violated the law.

The president has cast asylum-seekers from Central America as criminals and terrorists. In reality, many are women and children fleeing brutal and deadly violence and lawlessness — in other words, the people for whom the Refugee Act of 1980 was written.

The act provides that “(any) alien who is physically present in the United States (whether or not at a designated port of arrival), irrespective of such alien’s status, may apply for asylum.”

The law has long been interpreted as allowing undocumented immigrants apprehended in the United States to apply for asylum when the government seeks to remove them from the country.


Noncitizens must apply within a year of arriving and must satisfy a formidable burden of proof, showing persecution or fear of persecution based on their race, religion, nationality, membership in a particular social group or political opinion. If they can prove their case, they are afforded lawful permanent resident status and ultimately can become eligible for citizenship.

Large groups of migrants sought asylum under other presidents, but no other modern president took the extreme step of eliminating eligibility for an entire group of potential applicants.

Kevin Johnson cropped.jpg
Kevin Johnson

President Jimmy Carter detained thousands of Cubans who fled communism in the Mariel boatlift in 1980. President Ronald Reagan detained asylum-seekers fleeing civil wars in Central America. Asylum claims in those cases were considered even for migrants who unlawfully entered the country.

Presidents George H.W. Bush and Bill Clinton took a more questionable approach toward Haitian asylum-seekers, but it still complied with the letter of the law. Coast Guard cutters interdicted boats of Haitians on the high seas and returned them to Haiti. They could apply for asylum at the U.S. embassy in Port-au-Prince but were kept from reaching the country.

The Haitian approach evolved into the “feet wet, feet dry” policy in which migrants who made it to U.S. territory were permitted to apply for asylum while those who were halted on the seas were returned to their homelands.

Courts have repeatedly stopped the Trump administration’s immigration enforcement policies for violating the law. Courts barred the administration from stripping federal funding from “sanctuary” jurisdictions. Courts halted the rescission of the Deferred Action for Childhood Arrivals policy. Courts stopped the elimination of temporary protected status for Salvadorans, Haitians, and others. While the Supreme Court ultimately upheld the third draft of the “Muslim” ban, the lower courts invalidated two versions of the ban.

Asylum is a cherished form of relief under U.S. law. It helps correct for our failures as a nation, such as turning our backs on Jews fleeing Nazi persecution during World War II. Congress carefully crafted the Refugee Act to ensure the availability of humanitarian relief for bona fide refugees.

President Trump should not be permitted to break the law by fiat and declaring some noncitizens ineligible, even if he finds compliance with the law costly, inefficient or annoying.

Kevin R. Johnson is dean, School of Law; and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis.