Asylum and Border Policy: How It Works vs. How It Should Work

During the first week of his second term, President Trump implemented a series of sweeping and draconian changes to asylum and border policy. These changes will have an immeasurable and harmful impact on the lives of people fleeing persecution across the world.

In the latest edition of HIAS’ Deep Dive series, we explore U.S. asylum law and how these new policies will affect asylum seekers. We also address numerous problems with these policies and provide recommendations on how to make access to asylum more fair, safe, and efficient in the United States.

What is asylum and how does it work?

To qualify for asylum, an individual must be physically present in the United States and meet the international definition of a “refugee.” A refugee is an individual who is unable or unwilling to return to their country of origin because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The United Nations 1951 Refugee Convention and its 1967 Protocol provide the international framework for asylum. The United States adopted this framework in the Refugee Act of 1980 which obligates the country to provide access to asylum to individuals fleeing persecution, regardless of their manner of entry to the United States.

On January 20, 2025, President Trump obliterated the historic legal protections and processes afforded to asylum seekers with the swipe of a pen.

In the past, there were two ways an individual could seek asylum. One was pursuing “affirmative asylum” by applying to the U.S. Citizenship and Immigration Services (USCIS). Individuals who overstayed a visa or had temporary legal status, such as humanitarian parole, were eligible to apply for affirmative asylum. The second Trump administration has severely curtailed this process by terminating all humanitarian parole programs and restricting the issuance of visas.

Previously, individuals on the border were also placed in “removal proceedings” by Customs and Border Protection (CBP) after they presented themselves at a port of entry or were apprehended in between ports of entry. Once in removal proceedings, an asylum seeker was required to attend Immigration Court and navigate a complicated legal process without the right to government-appointed counsel.

Since January 20, 2025, new policies have completely closed off access to ports of entry for asylum seekers. Additionally, CBP officials now have the legal authority to expel individuals back to Mexico without placing them in removal proceedings, stripping them of any opportunity to seek asylum. The current Trump administration has also significantly expanded the use of expedited removal beyond the border and to individuals in the interior of the country. Expedited removal is a process that allows for Immigration and Customs Enforcement (ICE) to arrange for the immediate deportation of an individual if they are unable to pass an initial fear screening called a “Credible Fear Interview.”

At the onset of his second term, President Trump has also ordered for military forces to patrol the border, dramatically decreased the release of asylum seekers into the United States, and reinstated the “Remain in Mexico” policy. Remain in Mexico, or the Migrant Protection Protocols, is a policy from the first Trump administration which authorized CBP to place over 68,000 asylum seekers in removal proceedings but forced them to wait in Mexico. Over the course of just a few days, the right to seek asylum — a moral imperative and legal obligation — has been decimated.

What are the problems with U.S. asylum and border policy?

A significant problem with U.S. asylum policy is a lack of investment in the timely and fair adjudication of cases. By the end of 2024, there were over 1.4 million asylum cases pending in United States immigration courts. Because of this backlog, asylum seekers often wait several years for a decision in their case. President Trump’s recent elimination of safe and legal pathways into the country for individuals fleeing persecution, such as humanitarian parole and refugee resettlement, has exacerbated the problem. Moreover, Congress’ failure to pass comprehensive immigration reform in decades has led to an outdated and inefficient policy to address asylum and the border.

The second Trump administration’s policies of mass expulsion of asylum seekers to Mexico are not a solution. They expose vulnerable individuals to targeted and routine violence from organized crime and human smugglers. While in Mexico, asylum seekers lack access to basic social services, safe housing, and legal representation. These policies contravene our domestic and international legal obligations to provide access to asylum and protection to individuals fleeing persecution.

How can we improve the asylum system and border policy?

HIAS advocates for comprehensive asylum and border policies that are lawful, humane, and reflect common sense. Most importantly, the United States must protect the basic right to seek asylum. Currently, that right is in extreme jeopardy. If any semblance of a U.S. asylum system remains intact, we recommend to:

• Invest in increased and improved processing capacity by CBP at ports of entry;

• Provide asylum seekers in the United States with prompt work authorization and social services to ensure self-sufficiency to contribute to the U.S. economy;

• Improve living conditions in CBP holding facilities and ICE detention centers to facilitate access to counsel and adequate medical care that protects the health of asylum seekers;

• Increase staffing of immigration judges and USCIS asylum officers;

• Update our asylum laws to align with international standards of protection;

• Repeal border expulsion policies that are unlawful and dangerous;

• Create additional lawful pathways to the United States to reduce pressure of irregular immigration on the border.

HIAS supports an immigration system that reflects our values, addresses the needs of our country, and respects the rights of asylum seekers in our communities.