Article by Senior Editor Heidi Woll
Introduction
Days before this past November’s presidential election, New York Times reporters Jazmine Ulloa and Hamed Aleaziz observed that “[f]or decades, granting political asylum has been part of the story that the United States has told about itself.”[1] Nevertheless, they warned that regardless of whether we had a President Harris or Trump, seeking asylum in the U.S. would likely never be the same.
Now we know we have a President Trump, and seeking asylum will likely never be the same.
Those familiar with the process of seeking and obtaining asylum in the United States know that it is a tricky process. Currently undocumented migrants that have entered the United States with the intention of seeking asylum have some considerations before them. They can apply for asylum, which will provide some protection from deportation and the ability to apply for a work permit, at the very least while the application is pending.[2] However, the asylum application also provides a lot of information to the government, including the asylum seeker’s address and information about their family. Some might therefore be wary of starting the process, instead choosing to remain undocumented, but physically safe, in the United States.
The Asylum Process
Asylum has been part of U.S. law since 1980, allowing those who fear for their safety to seek refuge in the U.S. as long as they can show a credible fear of persecution in their home country.[3] An asylum seeker whose asylum application is still pending still has a valid application.[4] If your asylum application is successful, then you are considered an asylee and may remain in the United States.[5] You may then apply for permanent residence by submitting Form I-485, however, news reports say that the government has stopped processing I-485 applications for people who have won asylum.[6]
The Expedited Removal Process
The mechanism of expedited removal, on the other hand, was created in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).[7] It is a process whereby low-level immigration officers can summarily remove certain noncitizens from the United States without a hearing before an immigration judge.
The expedited removal statute applies to (1) noncitizens who arrive at a port of entry, and (2) some noncitizens who enter without having been admitted or paroled (those who “enter without inspection”) and who have not been continuously present in the United States for at least two years.[8]
Individuals placed in expedited removal generally have no right to challenge their deportation in federal court, thanks to jurisdiction-stripping provisions in IIRAIRA.[9] Even where an immigration officer acted unlawfully in issuing an order of expedited removal, the person subject to removal is severely restricted in their ability to challenge that decision.[10] Individuals may only bring a lawsuit challenging their expedited removal order if they are a lawful permanent resident, or if they were previously determined to be a refugee or asylee by a court.[11] In 2020, the Supreme Court upheld this law, finding that it did not violate the right to habeas corpus or due process.[12]
Expedited removal is typically only applicable to people in those categories who either lack the proper entry documents or who seek or have sought entry through fraud or misrepresentation.[13] However, the use of expedited removal has varied since its adoption.[14] What has historically been true, however, is that undocumented immigrants placed in expedited removal proceedings are still entitled to access the asylum system if they express a credible fear of returning to their home country due to persecution or torture.[15]
Expedited Removals Under the Trump Administration
The expedited removal process under the Trump administration has been broadened to a concerning extent.[16] The Trump administration claims that the expedited removal process can be utilized even when the immigrant sought to be deported has parole or a pending asylum application.[17] But the U.S. government has also announced that people can no longer apply for asylum at the border.[18]
The U.S. Commission on International Religious Freedom (USCIRF) has flagged the expedited removal mechanism as a source of particular concern.[19] In its February 28, 2025 report, USCIRF described expedited removal as a “process to screen and swiftly remove certain noncitizens at U.S. ports of entry or at or near the U.S. border, with safeguards to protect bona fide asylum seekers” but notes that there have been “persistent flaws in the U.S. government’s treatment of asylum seekers in expedited removal, which place vulnerable people at risk of being repatriated to countries where they could face persecution, torture, or death.[20] USCIRF expressed concern that many problems it has repeatedly documented since 2005—including “flawed screening and documentation practices, a lack of training and quality control, inadequate information for noncitizens in the process, inappropriate detention conditions, and insufficient coordination and oversight”—have still not been addressed after two decades.[21] USCIRF further noted concerns that the United States is returning asylum seekers at risk of persecution or torture, in violation of domestic and international law.[22]
Scholars have recently sounded the alarms regarding the freeze on asylum.[23] Elora Mukherjee, the director of the Immigrants’ Rights Clinic at Columbia Law School, called Trump’s action on asylum “blatantly illegal and unconstitutional,” adding that Trump cannot end asylum with just a stroke of a pen.[24] Mukherjee noted that “[t]he president cannot single-handedly undo laws passed by Congress nor can the president unilaterally change international treaties to which the United States is a party[.]”[25] She also questioned Trump’s argument that there is an invasion at the southern border, which the White House is using to justify the suspension of all asylum-seekers.[26]
The Recent Expedited Removals of Migrants to El Salvador’s CECOT Prison
Politicians, reporters, scholars and judges across the country have recently expressed that we either may be, are soon to be, or are actively facing a constitutional crisis—particularly in the wake of the García case.[27] Last month, the United States removed Kilmar Armando Abrego García from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement (CECOT), despite a 2019 withholding order that prohibited his removal to El Salvador due to his “clear probability of future persecution” if returned to that nation.[28] The Trump administration has referred to this illegal removal as an “administrative error,” but simultaneously claims that Mr. Abrego García is a member of Central American gang MS-13 and poses a danger to American citizens.[29] Given the 2019 order, however, a district court judge in Maryland ordered the government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.”[30]
But April 7 came and went, and Abrego Garcia remained in El Salvador.[31] The Trump administration filed a writ of certiorari asking the Supreme Court to vacate the district court’s order, and Chief Justice John Roberts temporarily blocked the requirement that he be returned to give his Court time to consider the case.[32] But on Thursday evening, the full Court lifted that block in a 9-0 decision, all but ordering Abrego Garcia’s immediate release and return to the United States.[33]
Two federal judges have since ruled that probable cause exists to commence criminal contempt proceedings against the Trump administration for its violations of court orders on immigration cases.[34] Both court orders halted removals of “scores of Venezuelan migrants” to El Salvador under the expansive authority of a wartime law called the Alien Enemies Act a chance to challenge their removal.[35]
Another case making recent headlines spotlights a gay Venezuelan makeup artist named Andry Hernandez Romero. Hernandez Romero was in the process of seeking asylum in the United States, but was instead wrongly identified as a gang member and deported to El Salvador.[36] Hernandez Romero has no prior criminal record, neither in Venezuela nor in the United States.[37] His lawyer, Lindsay Toczylowski, stated that he was disappeared: “One day he was there, and the next day we’re supposed to have court, and he wasn’t brought to court,” she said.[38] He was targeted in Venezuela because of his sexuality and political views, and the U.S. government had previously concluded that the threats against him were credible and that he had a real probability of winning an asylum claim.[39]
Abrego García and Hernandez Romero’s cases call into question the actual power of the asylum mechanism in today’s America, particularly in the face of the Trump administration’s use of the Alien Enemies Act to carry out its expedited removals. If the executive branch is able to deport an individual before the individual can effectively challenge the executive’s power to remove him in court, does that not constitute a clear overreach on the part of the executive, and therefore a violation of separation of powers principles? Does such an overreaching executive branch not essentially handicap the promised protections of asylum? Practically speaking, why would an undocumented person ever claim asylum if the executive, like the Trump administration with Mr. Abrego García, can remove them in open violation of a court order? And then once the prospective asylee, asylum seeker, or asylee for that matter, is no longer within the jurisdiction of the U.S. court—even when the American government pays a foreign nation millions of dollars to house the individual[40]—what can challengers of the executive’s action in removing the individual reasonably do? How do we redress the harm done to those who sought our protection under the asylum process, but instead were sent back to the places they fled?
Conclusion and This Author’s Opinion
Asylees are among our most vulnerable. The removal of people whose asylum applications are successful, or even pending, back to their countries of origin, can inflict grievous harm on the same individuals that the entire asylum mechanism is meant to protect. It is also a betrayal – both to the individual asylee or asylum seeker being removed, but also to the broader international community that expects the American government to uphold domestic and international law. Asylum is an important mechanism that should remain strong and unwavering, without regard to changing tides in the political debate regarding the treatment of undocumented migrants. Importantly, a strong asylum mechanism is a sign of a healthy nation that respects treaties and considers itself part of an international community.
[1] Jazmine Ulloa and Hamed Aleaziz, Whether Harris or Trump Wins, Seeking Asylum in the U.S. May Never Be the Same, The New York Times (Oct. 28, 2024), https://www.nytimes.com/2024/10/28/us/politics/harris-trump-asylum-immigration.html?searchResultPosition=1.
[2] The Asylum Seeker Advocacy Project (ASAP), How are laws changing for asylum seekers? https://help.asylumadvocacy.org/law-changes-jan-2025/ (Apr. 14, 2025).
[3] Sergio Martínez-Beltrán, President Trump’s suspension of asylum marks a break from U.S. past, National Public Radio, https://www.npr.org/2025/01/23/nx-s1-5272406/trump-suspends-asylum (Jan. 23, 2025, 12:14 PM).
[4] Id.
[5] Id.
[6] Id.
[7] American Immigration Council, Expedited Removal Explainer, https://www.americanimmigrationcouncil.org/research/expedited-removal (Feb. 20, 2025); Illegal Immigration Reform and Immigrant Responsibility Act, Pub. Act 78-795,
[9] Id.
[10] Id.
[11] Id.
[12] Id.; see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 141-42 (2020)).
[13] American Immigration Council, Expedited Removal Explainer, https://www.americanimmigrationcouncil.org/research/expedited-removal (Feb. 20, 2025).
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] How are laws changing for asylum seekers?, The Asylum Seeker Advocacy Project (ASAP), https://help.asylumadvocacy.org/law-changes-jan-2025/ (Apr. 14, 2025).
[19] USCIRF Releases Updated Recommendations on Asylum Seekers in Expedited Removal, U.S. Commission on International Religious Freedom, https://www.uscirf.gov/news-room/releases-statements/uscirf-releases-updated-recommendations-asylum-seekers-expedited.
[20] Id.
[21] Id.
[22] Id.
[23] Sergio Martínez-Beltrán, President Trump’s suspension of asylum marks a break from U.S. past, National Public Radio, https://www.npr.org/2025/01/23/nx-s1-5272406/trump-suspends-asylum (Jan. 23, 2025, 12:14 PM).
[24] Id.
[25] Id.
[26] Id.
[27] Erwin Chemerinsky, The constitutional crisis is real, The Los Angeles Times, https://www.latimes.com/opinion/story/2025-04-17/abrego-garcia-el-salvador-donald-trump (Apr. 17, 2025 11:28 AM); Nate Raymond, Judge asks if ‘constitutional crisis’ looms in Tufts student’s immigration case, USA Today, https://www.usatoday.com/story/news/politics/2025/04/14/judge-warns-constitutional-crisis-tufts-student-deportation-case/83088725007/ (Apr. 14, 2025, 5:46 PM); Tara Suter, Senate Democrat calls Abrego Garcia case ‘constitutional crisis’, https://thehill.com/homenews/senate/5250332-trump-constitutional-crisis-deportation/ (Apr. 15, 2025, 4:24 PM); see also Nicholas Riccardi, Why Trump’s idea of imprisoning U.S. citizens in El Salvador is likely illegal, Associated Press, https://www.pbs.org/newshour/politics/why-trumps-idea-of-imprisoning-u-s-citizens-in-el-salvador-is-likely-illegal (Apr. 15, 2025, 2:03 PM).
[28] Ian Millhiser, Trump defied a court order. The Supreme Court just handed him a partial loss., Vox, https://www.vox.com/scotus/408253/trump-supreme-court-order-abrego-garcia-el-salvador (Apr. 10, 2025, 7:01 PM).
[29] Noem v. Garcia, 2025 U.S. LEXIS 1456 at *1 (2025).
[30] Ian Millhiser, Trump defied a court order. The Supreme Court just handed him a partial loss., Vox, https://www.vox.com/scotus/408253/trump-supreme-court-order-abrego-garcia-el-salvador (Apr. 10, 2025, 7:01 PM); see Abrego Garcia v. Noem, 2025 U.S. Dist. LEXIS 65298 (D. Md., Apr. 6, 2025).
[31] Ian Millhiser, Trump defied a court order. The Supreme Court just handed him a partial loss., Vox, https://www.vox.com/scotus/408253/trump-supreme-court-order-abrego-garcia-el-salvador (Apr. 10, 2025, 7:01 PM).
[32] Id.; Noem v. Garcia, 2025 U.S. LEXIS 1449 (U.S., Apr. 7, 2025).
[33] Noem v. Garcia, 2025 U.S. LEXIS 1456 at *1 (2025).
[34] Alan Feuer, Judge Threatens Contempt Proceedings Over Deportation Flights to El Salvador, The New York Times (Apr. 16, 2025), https://www.nytimes.com/2025/04/16/us/politics/trump-probable-cause-contempt-deportation-flights.html.
[35] Id.
[36] See Sara Dorn, What To Know About Andry: 31-Year-Old Makeup Artist Falsely Deported To El Salvador Prison, Lawyer Says, https://www.forbes.com/sites/saradorn/2025/03/24/what-to-know-about-andry-31-year-old-makeup-artist-falsely-deported-to-el-salvador-prison-lawyer-says/ (Mar. 24, 2025, 03:07 PM).
[37] Id.
[38] Cecilia Vega, Aliza Chasan, et al., Trump administration deports gay makeup artist to prison in El Salvador, CBS News, https://www.cbsnews.com/news/venezuelan-migrants-deportations-el-salvador-prison-60-minutes/ (Apr. 6, 2025, 7:00 PM).
[39] Id.
[40] The Associated Press, What to know about CECOT, El Salvador’s mega-prison for gang members, National Public Radio, https://www.npr.org/2025/03/17/g-s1-54206/el-salvador-mega-prison-cecot (Mar. 17, 2025, 1:52 AM).
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