Migrants walk together along the U.S.-Mexico border wall as they seek asylum in the United States on June 4 in El Paso, Texas. | Joe Raedle/Getty Images Immigration Fast-track regulation bars third-country asylum seekers

A new fast-track asylum regulation will prevent migrants from seeking asylum in the U.S. if they first pass through another country and don't apply for protection in that nation.

The regulation — first reported by POLITICO in May — will effectively cut off asylum protections for Central American migrants who travel to the U.S.-Mexico border from their home country.


The measure will publish in final form in the Federal Register Tuesday and will take effect immediately. Migrants who entered the U.S. before the effective date will not be subject to the new standard, according to an advance notice posted online Monday.

The move, which comes as President Donald Trump continues to grapple with a recent surge of migration on the southwest border, likely will face court challenges. A federal judge in November temporarily halted a similar Trump policy that blocked migrants who cross between ports of entry from seeking asylum.

President Trump was scheduled to meet Monday at the White House with Guatemalan President Jimmy Morales to discuss a possible asylum pact, but the Guatemalan government announced Sunday that the meeting would be postponed amid legal challenges in Guatemala.

U.S. and Mexico officials also have considered the possibility of asylum talks. Mexican officials quietly agreed in June to engage in discussions related to a “safe third country” or regional asylum pact if a current set of counter-migration measures falls to reduce the number of attempted crossings.

The regulation will be issued jointly by the Homeland Security and Justice departments, according to the notice Monday.

Asylum officers and federal immigration judges will be required to adopt the new standard when administering screenings to determine whether a migrant has a “credible fear” of persecution in his or her home country, the first step in certain asylum claims. The Trump administration contends the previous standard was too low and allowed migrants easy passage into the U.S.

Attorney General William Barr and acting DHS Secretary Kevin McAleenan lauded the move in written statements.

Barr argued that the new measure “will decrease forum shopping by economic migrants and those who seek to exploit our asylum system,” but will still leave other routes to seek protection.

The new regulation will not affect applications for protection under two other avenues available to migrants: “withholding of removal” and relief under the United Nations Convention against Torture, a 1987 treaty.

However, migrants applying for refuge through those programs face a higher bar to prove a fear of returning to their home countries, and generally aren’t able to petition for a green card or for family members to join them.

The latest asylum regulation contains three exceptions, according to DHS and DOJ.

Migrants may be exempted from the ban if they demonstrate that they first attempted to seek protection from persecution or torture in at least one other transit country, but were denied refuge.

Likewise, asylum seekers who meet the definition of a “victim of a severe form of trafficking in persons” — a standard outlined in federal immigration law — will be able to circumvent the new restrictions.

Finally, migrants who pass through countries that are not parties to three different international asylum and refugee treaties will be excluded from the new asylum ban. That won't likely affect migrants traveling to the U.S., since most countries in the world adhere to at least one of the agreements.

Pro-migrant groups blasted the regulatory change following Monday’s announcement.

Lee Gelernt, an attorney with the American Civil Liberties Union, argued that the new rule was “patently unlawful“ and said the organization would take swift legal action against it.

Jennifer Quigley, director of refugee advocacy at Human Rights First, called it “another illegal, dangerous and disgraceful attempt to ban refugees from asylum in this country.”

The shift in asylum policy is only the latest of several Trump administration changes to the system to discourage migrants from trekking to the U.S.-Mexico border.

The administration in December announced its “remain in Mexico” program, which forces certain non-Mexican asylum seekers to stay in that country pending resolution of their U.S. asylum cases.

Under the program, formally known as the Migrant Protection Protocols, nearly 20,000 non-Mexican migrants have been forced to wait in Mexico, according to Mexican government statistics posted earlier this month.

The U.S. Court of Appeals for the 9th Circuit in May temporarily allowedthe Trump administration to continue running the program pending the outcome of a related legal challenge. The ruling reversed a lower court decision to block the program.

The asylum move could further inflame partisan fighting on Capitol Hill over the Trump administration’s handling of an influx of migrants in recent months.

The number of border arrests — a way to estimate crossings — rose in May to the highest level in more than a decade. While arrests dropped sharply in June, recent monthly totals more closely resemble the higher-traffic decades of the 1980s, 1990s and early 2000s.

Democrats have ripped the Trump administration for its handling of the influx. A DHS internal watchdog said in a report earlier this month that conditions in South Texas border stations for adults and children were dangerously overcrowded and unsanitary.

At the same time, Republicans have pressed Democrats to pass legislation that eliminates “loopholes” that allow migrants to seek asylum in the U.S. — a legislative request the Trump administration seeks to accomplish unilaterally with the latest asylum regulation.

Rep. Doug Collins of Georgia, the top Republican on the House Judiciary Committee, praised the regulatory action in a statement Monday morning and blasted Democrats for resisting GOP efforts to toughen the asylum process.

“Ignoring the underlying policy flaws that encourage illegal immigration, abuse of our generous system and the exploitation of women and children is anything but compassionate,” he said.

