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Supreme Court Permits U.S. Government To Curtail Asylum Requests


The Trump administration is dramatically rewriting the rules around who can get asylum in the United States. Yesterday, the Supreme Court decided to allow the administration to move forward with a policy that will prevent most migrants from Central America from seeking safe harbor in this country. Meanwhile, lawsuits against the policy are working through the lower courts. Regardless, though, this is still a huge win for the Trump administration. The southern border is effectively closed to the vast majority of migrants seeking asylum. NPR's Joel Rose covers immigration and joins us in studio. Hi, Joel.


MARTIN: Explain the details of the court's decision.

ROSE: Well, the Supreme Court is allowing this rule to go forward while legal challenges play out, as you said. And under this new policy, immigration authorities can deny asylum to most migrants at the southern border unless they have first asked for protection in a country they passed through while they were trying to reach the U.S. In practice, this could affect tens of thousands of migrants who've been arriving at the U.S.-Mexico border each month all this year, mainly from Central America, also from Cuba, Africa and South America. They say they're fleeing from violence and poverty to seek asylum here in the U.S.

MARTIN: So what will happen to those migrants?

ROSE: Well, effectively, this means that if they have arrived since the policy was announced in June, they can now be turned back with very few exceptions. So a migrant from Guatemala, for example, would first have to apply for asylum in Mexico and have their claim denied there before applying for asylum in the U.S. This new policy had been mostly blocked in court since shortly after it was announced. But now the administration says it plans to start implementing it as soon as possible.

MARTIN: OK. NPR's Joel Rose, stay with us. We're going to turn now to Ken Cuccinelli. He's the acting director of U.S. Citizenship and Immigration Services. Mr. Cuccinelli, thanks for being back on the show.

KEN CUCCINELLI: Yeah, my pleasure, Rachel. Good morning.

MARTIN: Good morning. Can you explain the government's position here? I mean, this is a fundamental change in how this country has approached asylum historically. What's the rationale?

CUCCINELLI: Well, there's a few reasons that this rule was instituted in July. And first and foremost, given what my agency does, I'd point to two things in particular - the crisis at the border plus our 330,000 asylum case backlog, which we're desperately trying to attack and get down. And yet with credible fear reviews, with reasonable fear, all the things that the border takes priority on just for my agency - this doesn't even speak to CBP or ICE - that alone is a reason for this or two reasons for this. And it should, if implemented, and as the Supreme Court's stay of the injunction holds, by which I mean we ultimately win the case, which we expect to do, then this will give us the ability to, first of all, deter some people coming with asylum claims, which is part of the intention.


CUCCINELLI: And second, it will allow asylum officers who would be otherwise occupied dealing with what I'll call the short-term jobs at the border, like credible fear interviews, like reasonable fear interviews, all the things that asylum officers have to do on a short turnaround that take priority over getting to the asylum case backlog because there are so many legitimate claims in that backlog that we're not getting to.

MARTIN: So - and then why just close the border altogether instead of work on putting more judges, expediting the asylum processing, the time that it takes to process these claims?

CUCCINELLI: Yeah. Actually, those things are going on as well. Of course, Department of Homeland Security doesn't have the immigration judges there in the Department of Justice. But I know that they have expanded their recruiting to expand the raw numbers of judges available. They have a 950,000 case backlog. So, I mean, part of what has happened here strategically is that immigrants from a whole lot of countries have overwhelmed the system at the southern border. This year, we're going to see almost double last year's crisis level numbers coming across for the year. And that leads to a position where, up until now, we've had to release people into the interior and do other things like that that, frankly, are contrary to the law. The law says you detain people till their hearings are held, which is what we are doing with the migrant protection program.

MARTIN: I want to ask about the implications of this because the policy change will mean that someone who is from Central America who travels through Mexico to try to claim asylum in the United States would first have to make that application in Mexico. Can you ponder a situation where a person would be denied asylum in Mexico and then granted asylum in the United States? I mean, and if not, does that mean you're essentially ending asylum for anyone coming from Central America?

CUCCINELLI: That requires me to have more knowledge of the Mexican system than I have to answer that. And if you - the implication of the question is that all the systems are the same, and maybe they're similar, but the starting point here for us (ph) is that we're in crisis mode. We're not getting help from Congress - very limited. We got a little help for - to deal - to house children in the beginning of the summer, but otherwise, that's it.

MARTIN: But you're not - this does not affect asylum-seekers who come by plane, correct?

CUCCINELLI: People who come directly to the country who do not come through another country would be in traditional asylum position. Your reporter who identified that earlier was absolutely correct.

MARTIN: So what makes them different? I mean, why privilege those asylum-seekers over people who are walking from Central America?

CUCCINELLI: Rachel, we have different systems in lots of different directions. For instance, with our northern border, we have a very strict agreement with Canada where you can only seek asylum in one country or the other no matter what the outcome. That is a third-party agreement that has been in place for quite some time. And that's entirely different and has been for years with the southern border and people coming in by plane, to use your example. So it is not new to have different eligibility standards based on how people try to access to our system. Mind you, most of the people coming over the southern border are doing so illegally. They're not coming through ports of entry.

MARTIN: Well, it's not illegal to come to the United States border and ask for asylum, though.

CUCCINELLI: It is illegal to cross between points of entry without having previously gotten permission to do so. And that is most of what's happening.

MARTIN: But when someone is claiming asylum, that's not an illegal act.

CUCCINELLI: Whether they're claiming asylum or not, it is still an illegal act. To get in the legal process, they would have to come through a port of entry, which in the last month, about one-quarter of the apprehensions or turn - inadmissible determinations were at ports of entry. The other three-quarters came across the border illegally - criminally.

MARTIN: I imagine you've seen all the reporting about how difficult it is for migrants to make their court dates because they're required now, as a result of another policy change by the administration, to wait in Mexico for those claims to be processed. But there is a lot of reporting that these migrants are waiting in squalid, dangerous conditions. They get to the border to cross for their hearing, and then they're delayed so long by U.S. Customs and Border Protection, they miss it. Is that intentional? Is that by design?

CUCCINELLI: Yeah, it is absolutely not by design. The design is set up to work. I will say that this is still relatively new. It was started last December. And in California and in El Paso and - we are still in the relatively early stages and adding on Brownsville and Laredo. And we want this to work. We will make it work. And I think I read the same article that you're referencing. And you know, the main person in that article got a hearing rescheduled. We don't want people...

MARTIN: Well, there were several articles. Several different media outlets are reporting this.

CUCCINELLI: But fundamentally, Rachel, we want this to work. That is the point. We don't set up a whole expansion - physical expansion - across multiple departments and agencies to not work. We do want this to work. We believe - we know statistically that most of the asylum claims coming over the border are not going to be granted. We know that because many have gone through the process. And where you get a near 80% positive finding of the initial credible fear, which is a relatively low standard to keep them in the process, only 10% to 15% of those people are ultimately found to have credible asylum claims.

MARTIN: Let me ask you...

CUCCINELLI: That's a huge gap that makes for tremendous logistical challenges.

MARTIN: We just have moments left. The Trump administration has to decide by the end of this month on the annual cap for how many refugees will be allowed into the U.S. Reportedly, there will be a dramatic cut, possibly to zero. Can you confirm that? Is that the intention?

CUCCINELLI: I cannot confirm that. Those discussions are still ongoing between numerous departments at the secretarial level, and no decision has been finalized in that regard.

MARTIN: Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services, thank you, as always, for your time.

CUCCINELLI: Rachel, good to be with you.

MARTIN: NPR's Joel Rose was listening in to the conversation. Joel, what struck you about what you heard from Mr. Cuccinelli there?

ROSE: Well, you know, just - this is a big win for the administration. This is what they've been pushing for for a long time. They have argued that the asylum system is broken, as you heard Mr. Cuccinelli saying there. And that, you know, migrants have been gaming the system to get an entry to the U.S., you know, while their immigration cases play out in court, which takes months, even years in some cases. I mean, the backlog is absolutely real that he's talking about.

MARTIN: And he maintains they're trying to address both of those simultaneously, act - fully use a deterrent mechanism in the form of this policy change and also work on that backlog by hiring more judges, building more courts.

ROSE: Yeah, and that's true. You know, the - what immigrant advocates would say is that, you know, you don't have to detain all these migrants, and you don't have to keep them in Mexico. You could admit them to the U.S. to wait for their day in immigration court. They - immigrant advocates argue they do show up in great numbers. But the administration is skeptical about that.

MARTIN: And we should just note, briefly, that this is not over. The Supreme Court has issued this ruling, but it's likely the court might hear this again, right?

ROSE: Yeah. This is just a temporary stay while the legal challenge goes forward in the lower courts. Critics of the administration argue that this rule is illegal because under U.S. immigration law, they say you can ask for asylum anywhere in the U.S. regardless of how you got here. There is a decent chance that they'll prevail in the lower courts. But as you say, this could be headed back to the Supreme Court. And I think we know there are at least five votes who are in favor of letting this policy take effect immediately.

MARTIN: All right. NPR's Joel Rose for us. Thanks, Joel. We appreciate it.

ROSE: Yeah. You're welcome. Transcript provided by NPR, Copyright NPR.