Is asylum dead?

In a world increasingly plagued by conflict, climate change, and poverty, a record number of people around the globe are displaced and seeking safety. But with Republicans poised to control both the White House and Congress and anti-immigration sentiment spreading across Europe, the ability to obtain asylum in middle- and high-income countries is quickly vanishing.

Donald Trump won reelection in November on a staunchly anti-immigrant platform. He promised to deport millions of undocumented immigrants from the U.S. using expedited removal, a program that would allow law enforcement to expel without due process any individual who entered the country without legal documentation within the past two years. Experts have warned that these efforts could cause inflation and cost the government tens of billions of dollars to implement. Still, Republicans have put a crackdown on migration at the top of their agenda.

This week, the Republican-controlled Senate moved closer to passing a bill that would require U.S. Immigration and Customs Enforcement to detain tens of thousands more immigrants than it has the funding or capacity to hold. The bill is expected to be the first to land on Trump’s desk after his inauguration. While the legislation wouldn’t immediately impact all asylum seekers currently in the U.S., it’s a sign of the changing view on immigration enforcement that is the new normal in Washington.

U.S. law currently offers displaced people the right to seek asylum. The 1980 Refugee Act remains on the books, enshrining some elements of the United Nations Refugee Convention into domestic laws and giving all displaced people the right to have a judge determine whether they have a credible fear of persecution. Nevertheless, experts say the asylum system has been shrinking for years as successive administrations implemented policies that made it more difficult to claim and qualify for asylum.

“It is significantly harder to apply for asylum today than it was even four years ago under the Trump administration, and significantly harder still than it was a decade ago under the Obama administration,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council who recently testified in front of Congress on mass deportations.

For more than four decades, any person in the United States had the right to apply for asylum before they were deported, regardless of how they entered the country. However, after the number of migrants began to spike precipitously around 2014 due to increased gang violence in Central America, successive administrations started looking for ways to decrease the number of people entering the country.

Soon after coming to office in 2017, Trump began separating migrant children from their parents to deter families from traveling to the southern border. However, the policy failed to decrease the number of people trying to enter the U.S. That’s when the Trump administration began seeking agreements with so-called “safe third countries.” The administration routinely sent Hondurans, Guatemalans, and Salvadorans who sought safety in the U.S. to each other’s countries. In December 2018, the Trump administration also announced the creation of the Migrant Protection Protocols, known colloquially as the Remain in Mexico policy.

The new program sent roughly 700,000 people to Mexico to wait for their asylum claims to be heard. Many were left in squalor and subjected to harassment by gangs and to other human rights abuses. The Biden administration eventually terminated the program after coming to office. However, that precedent kicked off a global trend known as border externalization, when countries where migrants are seeking asylum send those individuals to a third country for processing and detention.

In the years since then, the United Kingdom has attempted to send migrants to Rwanda. Italy has built migrant detention centers in Albania. The European Union has sought to finance detention in countries like Libya and Tunisia and has agreed to provide Turkey with monetary assistance to keep Syrian refugees from crossing into Europe. Courts have struck down some of these agreements for violating international and domestic laws. But that hasn’t stopped successive governments from trying to solve domestic political problems by seeking new border externalization deals. Experts argue that these deals, such as Remain in Mexico, put vulnerable people at risk.

“They’re already a very vulnerable population, and the anti-migrant sentiment in Mexico is high,” Jennie Murray, the president of the National Immigration Forum, told National Journal. “They are very vulnerable to attacks and other types of ways that people prey on them.”

Meanwhile, the Trump administration adopted several other policies that changed how asylum cases are dealt with in the U.S. and globally. Trump implemented rapid asylum screening at the U.S. southern border, allowing the quick removal of non-Mexicans seeking asylum and preventing lawyers from accessing individuals who would like to prepare for their "credible fear" screening. He also implemented a law known as Title 42 at the onset of the COVID-19 pandemic. That public health authority allowed the government to expel migrants to prevent a communicable disease from spreading. It was the first time migrants could be deported without being allowed to seek asylum at all.

After coming to office in 2021, President Biden rolled back the family-separation policy and eventually terminated Remain in Mexico. He also granted temporary protective status to people from unsafe countries, preventing the deportation of people from countries including Ukraine and Venezuela. Just last week, Biden extended temporary protection to over 1 million immigrants.

Nevertheless, experts say Biden also implemented policies that made it more difficult for people to claim asylum. Biden banned asylum for anyone who entered the country illegally. Now, migrants must apply for an appointment through the CBP-One application and request asylum at a designated port of entry. That can often take many months, during which people must wait in Mexico.

Under Biden, border guards also stopped asking migrants if they want to apply for asylum, leaving it up to the people trying to enter the U.S. to request an asylum screening. Experts say the administration has also turned a blind eye when border agents expelled migrants without allowing them to claim asylum.

“We have long protected our partnership with international law that says when someone sets foot in the U.S. and claims asylum that they have the right to maintain a presence in the U.S. for their credible fear to be heard and processed and then to be adjudicated,” Murray said. “That’s still where we are. But we’ve seen the last two administrations, Trump and then Biden, significantly limit the access for asylum seekers in various ways.”

Now, Trump and congressional Republicans plan to take an even more stringent approach to migration. Some people close to Trump have suggested he plans to reinstate Title 42 through executive order shortly after taking office. To do that, the administration must prove there is a serious risk that a communicable disease could enter through the border.

Republicans are also likely to try to revive the “death to asylum” rule, which makes it harder to qualify for asylum. A court struck down the rule based on a technicality, but its provisions are in H.R. 2, a hard-line immigration-reform bill that House Republicans tried to pass in the last Congress.

“It was essentially a regulation filled with pitfalls and red tape and Kafkaesque little traps for people,” Reichlin-Melnick said. “So that even if you managed to get into the country successfully, even if you were eligible for asylum, even if you had a strong case, by the time you made it in front of the judge your chance of actually winning would be virtually nothing.”

Congress has struggled over the years to pass comprehensive immigration reform. Last spring, lawmakers abandoned an attempt to negotiate a bipartisan border-security bill after Trump lobbied against it. However, the next Congress will likely revive that effort. House Republicans have already introduced a bill to renew the Remain in Mexico policy. Introduced by freshman Rep. Brandon Gill, it has over 65 cosponsors in the House. A spokesperson for Gill said that more cosponsors are still signing onto the legislation.

Meanwhile, the number of displaced people worldwide is continuing to grow.

“We have over 115 million people displaced globally right now. That’s an incredible number,” Murray said. “All of us are trying to wrestle with it, especially leading economies like the EU, the U.S., Canada, and even Mexico. We’re grappling with how to attract workers, keep borders safe, maintain international law, and also have our own asylum laws.”