The administration of US President Donald Trump chose Human Rights Day — December 10 — to finalize what has come to be known as its “death to asylum” rule. Despite receiving more than 87,000 comments, including from Human Rights Watch, the final rule differs little from the proposed one.
Now scheduled to go into effect on January 10, the rule creates insurmountable procedural barriers, evidentiary burdens, and qualification standards to prevent three groups, especially, from being able to exercise their right to seek and enjoy asylum in the United States: Central Americans fleeing gang violence; women and others fleeing domestic abuse; and people fleeing persecution on the basis of sexual orientation or gender identity. But the rule sets bars that will make it exceedingly difficult for all people who deserve asylum to be recognized as refugees and protected.
The final rule’s new definitions of fundamental asylum concepts will exclude from protection many of the people Human Rights Day honors. “Political opinion” as the basis of an asylum claim now must be in support of “a discrete cause related to political control of a state.” Human rights defenders persecuted because they called for reform, such as Chinese human rights lawyer Wang Quanzhang, who was imprisoned, held incommunicado for years and allegedly tortured, would be ineligible for asylum in the US because they had not advocated regime change. “Membership in a particular social group” as grounds for asylum will now explicitly exclude gender and a laundry list of other characteristics and situations.
The term “persecution” will now require “the infliction of a severe level of harm…so severe that they constitute an exigent threat.” To qualify, applicants will essentially need to show a gun was held to their heads. And yet, Human Rights Watch’s work with persecuted minorities throughout the world illustrates that persecution is often a long, grinding cumulative harm of a thousand small cuts.
President-elect Joe Biden can and should undo this regulation, but unless Congress formally disapproves of it within 60 legislative working days, his administration will have to issue new regulations, which will take more time to take effect. In the rush to close and lock the door on asylum seekers before vacating office, the Trump administration is inflicting real harm on refugees fleeing real threats, reminding us that this administration’s abuses against immigrants and asylum seekers will reverberate in people’s lives for years to come.