Abdullah is from what President-elect Donald Trump calls a “terror prone region.” The young Iraqi came to the United States on a student visa four years ago; if he returns he will be expected to fight in a Shi’ite militia group or risk being declared a traitor. Not surprisingly, he has no plans to go back and hopes the United States will grant him asylum.
Abdullah falls under a category of people Trump has promised to clear out of the country. In his 100-day action plan, Trump pledged that he will suspend immigration from “all terror prone-regions where vetting cannot safely occur” and that “all vetting of people coming into our country will be considered ‘extreme vetting.’”
But thanks to international law and the U.S. Constitution, the incoming president might find it harder than he expects to keep that pledge. When Trump is sworn into office on Jan. 20, he will confront a number of practical limitations that will hinder his ability both to keep out asylum seekers and to deport those already in the country while they wait for their cases to be decided.
When it comes to determining how many refugees will be admitted into the United States, the president has considerable power. He is obligated to consult with Congress, but ultimately, he alone decides how many people can legally resettle in the country. For the 2016 fiscal year, President Barack Obama established that number to be 85,000 refugees, allocating 10,000 spots for Syrians fleeing their country’s brutal civil war.
For 2017, Obama increased the overall number to 110,000, which Trump will likely lower significantly. He may even declare that a certain number of people can only come from specific countries. He can follow through with his proposed “Muslim ban” by restricting the number of people from Muslim-majority countries. He could set the number of people escaping Syria, Afghanistan, Iraq, and Yemen – countries where the highest number of refugees originate – very low or to zero.
But such a move would likely have disastrous policy consequences. It would hurt regional alliances with countries like Turkey, which is helping the United States fight Islamic State in Iraq and Syria. Washington’s relations with Europe, where policies over accommodating the refugees are dividing the continent, would also suffer. Dramatically lowering refugee admissions or implementing a policy where certain groups are excluded would also have grave implications for the United States’ democratic and humanitarian values, putting into question the country’s role as a global leader.
One of Trump’s boldest campaign proposals – to “keep illegals out” by building a wall at the Mexican border – will also face major obstacles. Trump vowed to make Mexico pay for the wall, a plan Mexico has repeatedly rejected. If he can’t build the wall, the president-elect can tighten controls at the southern U.S. border in other, subtler ways: the U.S. Attorney General, for example, could expand expedited removal – a process that bypasses the immigration courts and allows officers to expel foreigners immediately if they enter the United States illegally.
But many people who enter illegally through Mexico are fleeing violence in Central America and are seeking asylum. The United States cannot send back people who have a fear of returning to their home countries: they are permitted to a credible fear interview with an asylum officer, which is a first step to starting the asylum process. The Attorney General’s written legal opinions, however, can redefine who is eligible for asylum, making it harder to find that the applicant has a credible fear of persecution on grounds like race, religion or political views.
Trump’s ability to keep refugees out is one thing, but deporting people already in the country legally will be much more difficult. Both refugees and asylum seekers have a Constitutional right to due process of law: They cannot be removed from the country without the opportunity to present their case to an immigration judge. Refugees already in the country qualify for protection under U.S. law based on the country’s ratification of international treaties – mainly, the 1951 Refugee Convention and its 1967 Optional Protocol.
As president, Trump wouldn’t be able to back out of these legal obligations without Congressional approval. It is unlikely that even Republican legislators would support changing U.S. humanitarian laws, if only because doing so might cause other countries to follow suit, creating chaos and weakening international cooperation. These countries would become less willing to welcome asylum seekers, worsening the global refugee crisis.
A bigger concern for asylum seekers and all immigrants is how the Trump administration will allocate resources towards the asylum system. From 2013 until March of this year, the number of cases before the nation’s eight asylum offices ballooned to 144,500, with an average wait time of two years to receive an asylum interview date. According to a Human Rights First report, the Department of Homeland Security’s Asylum Division lacks adequate staffing to address the backlog: 800 asylum officers are needed but only 400 are currently employed. Unless additional funds are injected into the overburdened system, Trump will inadvertently, yet effectively, keep people inside the country (and in legal limbo) for longer – not months, but years.
The president could eliminate the Asylum Division entirely, sending everyone straight to immigration court, where an immigration judge would determine whether a person is eligible for asylum and then deport them if they aren’t. But this strategy would also be thwarted with inefficiency by the same funding and resources problems.
This past summer, the backlog of pending cases in the federal immigration courts passed half a million – 521,676 as of October 2016. The wait time can be as long as five years for a case to be adjudicated. The primary cause of these bureaucratic delays is chronic underfunding and not enough judges. An estimated 524 judges are needed to eliminate the backlog by 2023 – currently, there are only 296 judges hearing all cases nationwide.
For those who disagree with Trump’s hard-line approach to immigration, this staffing shortfall offers a slight silver lining in his promises to deport millions. Many of his supporters will hold him accountable to that pledge, and he will have to show a genuine attempt to do something about immigration. One step could be to hire more immigration judges. Yes, immigration judges can deport people, but they can also allow people to stay. They are held to a high ethical standard and are expected to be politically impartial.
Even though Trump has said he’ll enact a hiring freeze on all federal positions, he would have to make an exception for immigration judges if he wants to follow through with one of his most polarizing promises. In doing so, he might inadvertently take steps to clean up the broken immigration system that the United States currently has in place. And immigrants – the very people he wants to deport – might benefit.
Lolita Brayman is a U.S.-based writer and immigration attorney, focusing of refugee and asylum issues. She holds an M.A. in international conflict resolution and mediation. @lolzlita
The views expressed in this article are not those of Reuters News.