Asylum is a protection granted to certain foreign nationals already in the United States or at the border of the United States.
An applicant for asylum must satisfy three basic requirements to obtain asylum: 1) the asylum applicant must establish he or she fears persecution in his or her home country, 2) the asylum applicant has been or would be persecuted based on his or her race, religion, nationality, political opinion, or membership in a particular social group, and 3) the asylum applicant must establish that the government of his or her home country is either involved in the persecution or unable or unwilling to control the conduct of private/nongovernmental actors. A person granted asylum is protected from being returned to his or her home country and is authorized to work in the United States.
On November 9, 2018, the Trump administration issued an asylum ban. The asylum ban made it so that only people who crossed the United States’ southern border at legal checkpoints could apply for asylum, and rendered persons who entered elsewhere ineligible for asylum.
On November 19, 2018, a federal court temporarily blocked the Trump administration’s asylum ban.
The temporary order explains that “Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter.” The judge’s reasoning is founded upon United States’ asylum law which indicates 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.” 8 U.S.C. § 1158 (a) (1). The temporary order also explains that “failure to comply with the entry requirements such as arriving at a designated port of entry, should bear little, if any, weight in the asylum process.” As such, the federal judge determined that the plaintiff’s case was likely to succeed on the merits, and issued a temporary restraining order on the President’s asylum ban.
The federal court judge further reasoned that, although the President has broad authority when it comes to immigration, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The judge also noted that persons seeking asylum, under the Trump administration’s asylum ban, would be forced “to choose between violence at the border, violence at home, or giving up a pathway to refugee status.” The temporary restraining order remains effective until December 19, 2018.