Trump Administration Attempts to End Asylum Protections

By Lydia Giannini. 

The American Civil Liberties Union (ACLU), alongside several immigrants’ rights groups, is suing the Trump administration for removing statutory protections for noncitizens contained in the Immigration and Nationality Act (“INA”). Among other things, the INA provides noncitizens the right to seek asylum protections when they arrive in the United States. On day one of his administration, President Trump issued a Presidential Proclamation attempting to displace the INA and prevent any individual from seeking asylum in the United States. The ACLU claims that this is an overreach of President Trump’s power and seeks to have the proclamation deemed unlawful.

What is Asylum?

A grant of asylum allows a noncitizen to remain in the United States instead of being removed to a country where they may face persecution. Noncitizens who are fleeing persecution and are physically present in the United States are permitted to file for asylum, regardless of immigration status. An individual qualifies for asylum if they can show a “well-founded fear of persecution” on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” If an individual’s application for asylum is approved, they are permitted to remain in the United States legally. If it is not approved, the case is referred to an immigration judge who conducts an independent review of the individual’s case for asylum.

Presidential Proclamation

On January 20, 2025, the first day of the new Trump administration, President Trump signed and published 46 Presidential Actions, including a proclamation titled “Guaranteeing The States Protection Against Invasion.”

By issuing the proclamation, President Trump seeks to prevent noncitizens from entering the United States or being granted asylum under two authorities. First, he points to section 212(f) of the INA, which allows the President to “suspend the entry” of all or certain classes of noncitizens if he determines that their entry “would be detrimental to the interests of the United States.” In conjunction with section 212(f), he also invokes section 215(a)(1) of the INA, which makes it unlawful for noncitizens to enter the United States “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” Second, he claims that immigration has risen to a level that allows him to declare an “invasion.” In doing so, he claims to have Constitutional authority under Article II and Article IV to set aside statutes passed by Congress, namely the INA. This move will block noncitizens from seeking asylum.

The ACLU’s Lawsuit

The ACLU and several immigrants’ rights groups are suing the Trump administration, claiming that this proclamation represents an overreach of Presidential power. The ACLU takes issue with the two authorities cited to justify the proclamation and President Trump’s order to end asylum in the United States.

First, the lawsuit claims that section 212(f) of the INA can only be used to suspend the entry of noncitizens into the United States, alleging that it cannot be used to prevent noncitizens who are already physically present in the United States from applying for asylum and other protections that Congress has put in place through the INA. According to the complaint, since the passage of the INA in 1952, this authority has been used “at least 90 times” and presidents have only ever used it to bar entry into the country. President Trump is attempting to use this authority to remove individuals already present in the country and to prevent them from “seeking relief from removal.” Section 212(f) allows the President to suspend entry, but the ACLU asserts that it does not supersede an individual’s statutory right to apply for asylum under 8 U.S.C. § 1158(a)(1).

The proclamation also invokes section 215(a)(1) of the INA. The ACLU alleges that presidents have typically invoked this authority in conjunction with their authority under section 212(f) but have never attempted to use it to “impose [a] condition and limitation on asylum eligibility.” The ACLU argues that this provision cannot be used to ignore and overpower other statutes Congress has passed, including the statutes that protect a noncitizen’s right to seek asylum in the United States.

Second, the lawsuit claims that President Trump’s assertion that immigration qualifies as an “invasion” is incorrect. In the proclamation, Trump invokes his authority under Article II, Section 1 of the Constitution to “take Care that the Laws be faithfully executed.” He also invokes his authority under Article IV, Section 4 to “protect each [State] against Invasion.” The preamble to the proclamation relies on these sections of the Constitution as authority for the President “to rapidly repatriate [noncitizens] to an alternative location.” The lawsuit alleges that Trump’s use of these Constitutional authorities to supersede Congressional statutes that guarantee asylum protections for noncitizens is a gross overextension of the President’s authority.

Additionally, the lawsuit argues that the proclamation does not provide a basis for qualifying immigration as an “invasion” and does not provide any parameters for determining what level of immigration constitutes an “invasion.” The proclamation provides no metrics for why immigration at the United States’ southern border should be considered an “invasion.” Also, it indicates that the proclamation and its effects will last until Trump “issue[s] a finding that the invasion at the southern border has ceased.” The lawsuit alleges that the lack of a timetable for presidential review of immigration at the southern border and the lack of metrics by which to determine if the purported “invasion” has ended should be grounds for blocking any further implementation of this presidential proclamation.

This lawsuit was filed on February 3rd, 2025 in the United States District Court for the District of Columbia. At the time of writing, the lawsuit is still pending and no further action has been taken.

Impact on Arizona

In 2023, the most recent year with available asylum data, the United States granted 54,350 noncitizens asylum. As of May 2023, more than 1.3 million asylum applications were still awaiting processing. Many of these pending applications were filed by individuals who crossed at the U.S.-Mexico border. In 2023 alone, 2.9 million individuals crossed into Arizona from Mexico through the Nogales, AZ port of entry.

Situated on the southern border of the United States, Arizona is one of a handful of states that is uniquely impacted by President Trump’s efforts to limit immigration and end asylum protections for noncitizens. Arizona’s economy is supported and strengthened by contributions from immigrants. In 2023, immigrants made up approximately 13.2% of Arizona’s population, yet their contributions accounted for 16% of the total value for all goods and services produced within the state. Immigrants have added more than $69 billion dollars to Arizona’s economy and it would suffer greatly without these contributions.

Arizona highly values its immigrant community and will be impacted by this presidential action, unless the ACLU’s challenge is successful. This action is likely to create fear and cause harm to many individuals who currently live in Arizona. Additionally, if this action remains in effect, Arizona will not see the same influx of immigrants into its communities. The long-term impacts of this action remain to be seen, but Arizona stands to be deeply affected by this proclamation and the outcome of the lawsuit filed by the ACLU and immigrants’ rights organizations.