Whether Harris or Trump wins, seeking asylum in the US may never be the same

WASHINGTON — For decades, granting political asylum has been part of the story that the United States has told about itself. As a Western democracy and a nation of immigrants, that national ethos goes, America has an obligation to offer safe harbor to people fleeing persecution in their home countries.

But regardless of who wins the White House in November, the 2024 presidential election is likely to mark the end of the asylum system as Americans have known it, according to interviews with roughly two dozen immigration lawyers, scholars and former federal officials.

That system is broken, many critics, supporters and even ordinary Americans said — a result of its transformation into something that it wasn’t intended to be at its creation.

Although former President Donald Trump and Vice President Kamala Harris offer starkly different perspectives on immigration policy, both candidates nonetheless promise sweeping restrictions on granting asylum, signaling the overhaul of long-standing commitments that have made the United States a global leader in aid to refugees.

The shift — a response to the rising number of Americans who have grown concerned about migrants entering the country — could have broad implications for people who have long seen the United States as a beacon of hope for protection from violence or political repression. With at least 169,000 people claiming asylum at the U.S. southern border last year alone, many are finding themselves increasingly stranded in desperate, unsafe conditions such as camps or crowded boats as other Western democracies similarly tighten their borders and authoritarian governments expand their powers.

Trump, who during his presidency severely reduced the number of refugees and asylum-seekers allowed to enter the country, is promising even more drastic actions to curb both legal and illegal immigration if elected again.

Harris has vowed to continue executive measures enacted by President Joe Biden this year that restrict how and where people can apply for asylum at the nation’s southern border. Those measures solidified Democrats’ rejection of the long tradition of providing asylum, a change that would have been inconceivable for the party until recently.

“No matter who wins or loses the White House, this underlying consensus that we have to restrict asylum access is going to remain in the cards for the foreseeable future,” said Cris Ramón, a senior adviser on immigration for Unidos US, a Latino civil rights organization whose political arm has endorsed Harris. “This is going to be the default policy position.”

Any migrant who crosses the nation’s southern border has a legal right to seek protection from persecution, under a system of treaties and U.S. laws rooted in the American and European failure to shelter many Jews during the Holocaust.

Much of the nation’s asylum and refugee policy evolved throughout the Cold War, when the United States favored those fleeing communism. Under the Refugee Act of 1980, which established the statutory basis for the process, judges can grant asylum only to people escaping persecution on account of religion, race, nationality, political opinion or membership in “a particular social group.” After drug war violence escalated in Mexico and Central America in the 1980s and ’90s — fueled in part by the U.S. demand for drugs and waged in part by gang members deported from American streets — immigration lawyers pushed to expand eligibility for asylum to include more people, including victims of domestic violence and gang crime.

Some observers trace the demise of the U.S. asylum system to the Trump administration, which took an almost methodical approach to dismantling it. Trump and his allies placed greater burdens on asylum-seekers to prove their claims. They issued new rules for immigration judges aimed at making claims harder to win. They used memos and legal mechanisms to narrow eligibility. In 2020, as the coronavirus pandemic raged, they cited a little-known public health rule to turn back virtually anyone seeking asylum at the southern border.

But others said the system has long been due for a reckoning.

Hiroshi Motomura, a law professor at UCLA, said the asylum system had been under pressure for generations, and that the response from the White House and Congress had long been to curb access, or to view asylum with a skepticism that had often led to underfunding.

“The inadequate resources lead to backlogs, the backlogs lead to the impression that the system doesn’t work and then it becomes self-fulfilling,” Motomura said, adding that the asylum system “badly needs reform.”

In recent decades, as both Democratic and Republican administrations promised — and failed — to overhaul the nation’s immigration laws, asylum became a main form of entry for many migrants.

The claims piled up in overcrowded and underfunded courts. The process for deciding them “essentially collapsed,” with waiting times for hearings averaging four years, according to a review by Philip G. Schrag, a professor at Georgetown University Law Center. Critics said those long waiting times — during which applicants have a right to work in the United States — incentivized people to cross the border and turn themselves in, even though just 3% of pending asylum applications were approved in 2024, according to the Cato Institute, a libertarian think tank.

Debate over the system intensified in 2011, during the Obama administration, when more children fleeing poverty and gang violence in Guatemala, El Salvador and Honduras started to cross the border without their parents, in numbers that peaked at just more than 68,500 minors apprehended, in 2014. Those numbers rose again under Trump, as a record 72,873 children traveling alone were apprehended in the first 11 months of 2019, presenting a fresh humanitarian crisis.

Migrants arriving at the southern border reached record numbers in the early years of the Biden administration, extending delays as understaffed agencies faced even greater strain. Many Americans saw the development as evidence that the process was defective.

“The fact that irregular migration was reaching such levels for the first few years was definitely creating a perception, and there was absolutely some reality to it as well, that things were not being done in an orderly fashion,” said Tom Jawetz, a former lead attorney at the Department of Homeland Security during the Biden administration.

The restrictive approach to asylum could well endure in the years ahead given congressional gridlock and broad changes in Americans’ attitudes on immigration. A majority want the government to focus on reducing the number of people entering the country. A small but growing minority, mostly Republicans and independents but also some Democrats, are increasingly concerned about immigrants’ collective impact on crime, taxes and national identity.

“Asylum at the border has become so politically toxic that it’s hard to imagine any moves to roll back the current restrictions or even expand access at ports of entry,” said Stephanie Leutert, a former State Department official in the Biden administration who is now director of the Mexico Security Initiative at the University of Texas at Austin.

Some human rights and immigration lawyers and activists say they fear the end of asylum altogether under a second Trump presidency. They argue that under Harris there would be more room for negotiation, a greater commitment to humanitarian obligations and an expansion of other forms of legal entry, including temporary protected status. Trump’s running mate, Sen. JD Vance, said recently that the GOP ticket would end those temporary protection programs entirely.

Immigration lawyers and asylum scholars said that hard-line measures alone are insufficient to stem the arrival of asylum-seekers as global migration increases, a result of several trends, including climate change and human rights violations in authoritarian countries. They called for continued humanitarian assistance to migrants’ home nations, to boost economic development and security and to prevent people from choosing to leave in the first place.

But overall, the spectrum of American policy will probably be a narrow one. Biden administration officials have dismissed criticism and noted that the executive measures have contributed to a striking drop in illegal crossings at the southern border. Migrants now must come in either through an online government app, CBP One, which provides 1,450 slots a day allowing them to set up a time and come to a port of entry to enter the country, or through limited programs that allow them to fly into the country, if they have a financial sponsor. Migrants apprehended at the border are also no longer asked if they fear returning to their home country, a change that migrant activists say is leading to the removal of people who may have legitimate claims of asylum.

Cecilia Muñoz, head of the White House Domestic Policy Council during the Obama administration and its point person on immigration, said the policy change was vital at a time when human smuggling networks were leveraging the asylum process to their advantage.

“Our asylum system was really built for a different era than the one we are living in,” she said. “The principles on which it is based are very important to preserve, but the mechanics are really outdated.”

This article originally appeared in The New York Times.

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