Photo Credit: USA Hello [1] [1] “How to apply for asylum in the U.S.” USA Hello. June 18th, 2024. https://usahello.org/immigration/asylum-refugees/apply-for-asylum/

Introduction

United States asylum law is fundamentally based on humanitarian principles. Despite this, the current U.S. asylum system is severely flawed, suffering from long delays, limited access to legal representation, and prejudiced courts. With another Trump presidency around the corner, asylum will face radical shifts to fit the Project 2025 agenda, a conservative playbook written by ex-Trump officials working for the Heritage Foundation. Despite “disavowing” Project 2025 on the campaign trail, many of Trump’s post-election nominees for high-level administrative posts have direct ties to Project 2025 [1]. Notably, Trump has nominated former I.C.E. director and Project 2025 author Tom Homan to be the “border-tsar” of the United States [2]. While asylum needs a rework, Project 2025 is not the solution. The policies proposed by Project 2025 shift asylum away from its foundational humanitarian aim and have the potential to inflict immeasurable harm on countless asylum seekers. Instead, the U.S. government should implement a complementary protection standard, a right to counsel for asylum seekers, and increased oversight of immigration judges to address the systemic injustices within asylum. 

Current Flaws of Asylum

Currently, immigration courts are experiencing unprecedented levels of backlog [3]. In turn, noncitizens must wait multiple years before getting the opportunity to sit before an immigration judge. As of October 2024, there were 3.7 million active immigration cases pending before the Immigration Court which is up from 186,000 cases in 2009 [4, 5]. The consequences of this are twofold: those who are eligible for protections under asylum law must wait for years to receive a decision while those who lack a valid claim are allowed to stay in the United States for years. 

Moreover, asylum seekers do not have a right to counsel [6]. Considering that deportation comes with life or death consequences, not having a legal right to an attorney goes against the principles of justice and due process that lay the foundation of the United States justice system  [7]. The 5th Amendment states: “No person shall… be deprived of life, liberty, or property, without due process of law” [8]. Deportation poses a threat to asylum seekers’ lives and liberties, yet asylum seekers have no right to government-appointed counsel, a necessity for due process. Hence, many individuals and families are forced to navigate the complexities of asylum law alone. Those who are unable to afford an attorney are 10.5 times less likely to be granted asylum, and only five percent of those who won relief between 2007 and 2012 did so without an attorney [9, 10]. Without a legal right to an attorney, thousands of families with valid asylum claims are turned away from the United States and sent back to life-threatening conditions in their home country. A deportation defense program could model the United States public defense system by guaranteeing legal counsel to those in proceedings, given that the consequences of deportation can be as severe as the consequences of criminal sentencing. 

Another example of injustice in immigration court is that individuals are much less likely to be granted asylum in certain U.S. courts than in others. While asylum claims are approved 70 percent of the time in San Francisco, California, asylum claims are only approved 10 percent of the time in Charlotte, North Carolina [11]. It seems improbable that noncitizens who seek asylum in San Francisco are more likely to have a legitimate fear of persecution than those in Charlotte. Instead, judicial bias is the more likely explanation for this discrepancy in asylum decision rates. Ironically, the ethics and professionalism guide for immigration judges asserts that “an Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case” [12]. Despite this assertion, some judges approve nearly 99 percent of their cases while others approve just 1 percent, both extremes highlighting the prejudices that immigration judges hold and likely the political agenda that they are aiming towards fulfilling [13].

Project 2025 and Alternative Solutions

Promising to fix the inefficiency and injustice within the U.S. asylum system, Project 2025 mirrors the policies that the previous Trump administration worked to implement, many of which were found to be unlawful. For example, in March 2020, the Trump Administration imposed a fee on asylum applications which was eventually blocked from going into effect by a federal judge in late September 2020 [14]. Project 2025, however, lays out a blueprint for how Trump could reimpose these application fees. This policy blatantly violates both U.S. domestic and international law as it essentially creates a wealth test for asylum seekers [15]. The Refugee Act of 1980 obliges the government to allow all eligible immigrants to apply for asylum, regardless of their financial status. While charging a high application fee for asylum would certainly reduce the number of people applying for asylum, such a proposal blithely disregards the humanitarian aim fundamental to asylum. 

Moreover, Project 2025 seeks to reinstate and codify asylum bans and third-country transit rules that Trump previously implemented in July 2019. Project 2025 disregards that in July 2020, federal courts found these bans and transit rules unlawful [16]. A third-country transit ban denies asylum to refugees who traveled through a third country en route to the United States. According to the international human rights organization, Human Rights First, when the Trump third-country transit bans were in place, “Torture-survivors and asylum seekers in immigration detention facilities from Cameroon, Ghana, Jamaica, and other countries, including many LGBTQ people, [were] denied both asylum and the ability to bring their families to safety” [17]. Third-country transit bans made countless individuals and families ineligible for asylum despite them having undergone bonafide persecution. 

On top of this, Project 2025 includes Trump’s plan to bring back the “Remain in Mexico” program, which would force asylum seekers to wait for their immigration court hearings in Mexico [18]. This program puts vulnerable asylum seekers in dangerous and unsafe conditions with little to no access to health services and humanitarian aid. Many suffered from abuse, rape, and extortion while awaiting their hearing for months when the program was in place [19]. The “Remain in Mexico” policy also poses serious issues to due process. Less than 8 percent of individuals awaiting their trial in Mexico could find and pay for legal counsel [20]. Two years after the program’s implementation, only 521 of 42,012 completed “Remain in Mexico” asylum cases were approved. This disturbingly low amount can be attributed to asylum seekers' lack of familiarity with U.S. asylum law and their inability to pay for legal counsel [21].

As an alternative to Project 2025, the U.S. should model the changes that Germany implemented in 2015 to eliminate its backlog of pending asylum cases while still maintaining the core humanitarian goals of asylum [22]. Germany proposed a “complementary protection standard” that grants protection to individuals who do not neatly fit into the criteria for refugee status but face serious harm like torture or inhumane treatment if returned to their country. Implementing this standard greatly simplified the assessment process for asylum seekers in Germany, enabling quicker determinations without the need for multiple interviews or court hearings. With these new policies, Germany went from an influx of about 1.1 million asylum applications in 2015 to roughly 68,000 pending asylum claims in 2017 [23, 24]. A similar complementary protection standard would streamline the asylum process in the U.S., greatly reducing backlog. Project 2025 instead proposes to narrow the criteria for asylum seekers, excluding gang violence and domestic violence as grounds for asylum. Beyond the disregard for the genuine dangers that those suffering from gang and domestic violence face, narrowing the criteria for asylum will only result in more inefficiency and the need for multiple hearings. 

Focused on driving asylum seekers away, Project 2025 fails to address the flaws within immigration court. It does not entertain the idea that immigration court hearings would become much more fair if the U.S. guaranteed refugees a right to counsel. To solve high discrepancies in asylum decision rates between courts, the Office of the Chief Immigration Judge (O.C.I.J.) should proactively assess and reprimand immigration judges for any ethical code violations they commit, such as failing their judicial duty to be impartial (ie. when judges have exceedingly low or high rates of granting asylum). Policies such as a complementary protection standard, a right to counsel, and increased oversight of immigration judges would all work to solve core issues of injustice within the asylum system. Project 2025 makes no such efforts to combat injustice; its solutions are based purely on exclusion. 

Ultimately, asylum law was built on the belief that any human facing persecution in their home country has the right to seek asylum. The policies proposed by Project 2025 shift asylum away from this core humanitarian principle and turn asylum into a system focused on restricting access and punishing vulnerable individuals.