Asylum Denied, Families Divided: Trump Administration’s Illegal Third-Country Transit Ban

One year ago, on July 16, 2019, the Trump administration issued a rule barring asylum for virtually all refugees who travel through another country on their way to seek protection at the southern border of the United States. It has done immense harm. Under the transit ban, the Trump administration has prevented refugees from seeking and receiving asylum, returned them to persecution, kept them in detention, left them in limbo in the United States, and separated them from their children.

On June 30, 2020, a federal court in Washington DC vacated the ban, and in early July 2020, in a separate suit, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against the ban. But rather than abandon this illegal and inhumane policy, the Trump administration is doubling down. It is proposing additional changes to U.S. regulations that would deny asylum to refugees who travel through other countries and expand this ban to all asylum seekers, whether or not they initially sought protection at the southern border.

The third-country transit asylum ban, and its proposed extension, are blatant attempts to circumvent the law. Congress has enacted specific measures to protect refugees who travel through other countries. Refugees are barred from asylum based on their travel only if they have “firmly resettled” in another country or if the United States has a formal return agreement with a country where refugees are both safe from persecution and have access to fair asylum procedures. Yet under the Trump administration’s transit ban and its proposed rules, refugees are ineligible for asylum due to their flight through other countries, unless they somehow manage to meet prohibitively restrictive exceptions.

The transit ban has inflicted enormous suffering on refugees and their families. Asylum seekers have been summarily deported in secretive border proceedings where officers used the ban to improperly raise the screening standard set by Congress. Torture-survivors and asylum seekers in immigration detention facilities from Cameroon, Ghana, Jamaica, and other countries, including many LGBTQ people, have been denied both asylum and the ability to bring their families to safety. Refugees from a range of countries such as Cuba, Honduras, Nicaragua, and Venezuela—already forced to wait many months in acute danger in Mexico under the “Migrant Protection Protocols” (MPP)—have been denied asylum and separated from their families. Immigration and Customs Enforcement (ICE) has used the ban to deny asylum seekers from release from detention regardless of their eligibility for parole.

Since March 2020, the administration has exploited the COVID-19 pandemic as a pretext to indefinitely block virtually all asylum seekers at the southern border, flouting U.S. refugee laws and treaty obligations. As a result, many asylum seekers who would have been subjected to the transit ban during expedited removal have been illegally expelled. While many immigration hearings have been postponed due to coronavirus-related court closures, some have gone forward, leading to additional transit ban denials. There is little doubt that the Trump administration will, if given the chance, continue to use the transit ban or similar proposed rules to deny refugees asylum and to prevent them from bringing their families to safety in the United States.

This report is based on interviews with dozens of asylum seekers and attorneys, asylum cases handled by Human Rights First’s attorneys and pro bono partners, immigration court decisions, credible fear determinations, federal court filings, government data, observation of immigration court hearings for the Laredo and Brownsville MPP tent courts in late 2019, and media reports.