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Touro Law Review

Abstract

The years of the Trump Administration have certainly been some of the most divisive in modern American political history. One of the largest divides arose from former President Trump’s brazen, “zero tolerance” immigration policies that relentlessly attacked many forms of immigration coming into the United States. Asylum-based immigration, which allows immigrants to come to this country as a safe haven when they are fleeing persecution in their home countries, was one of former President Trump’s main targets. Former President Trump even came dangerously close to eliminating asylum-based immigration with his “Death to Asylum” policy in December of 2020. President Biden has since reversed many of former President Trump’s detrimental asylum policies and enacted executive orders that facilitate asylum-based immigration. While asylum-based immigration has been saved by President Biden (for now), the actions of the Trump Administration have highlighted the issues regarding lack of consistency and over-delegation to the executive branch that plague immigration law to this day. This Note will examine various sources of asylum law, both prior to and during the Trump Administration, and evaluate the constitutionality of asylum policies between 2016 and 2020. Finally, this Note will give four recommendations future administrations can implement in order to provide fairer and more consistent asylum policies that are not so dependent on which President happens to be in power at the time: (1) creating a direct, fair, and inclusive path to citizenship; (2) decreasing ICE’s role in exchange for increasing the EOIR’s presence; (3) changing the focus in creating available facilities to immigrants; and (4) guaranteeing legal representation in immigration proceedings.

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