NOEL KING, HOST:
Critics are saying a new asylum rule from the Trump administration is illegal. The rule is meant to discourage people from seeking refuge at the U.S.-Mexico border. And it means they would likely be denied asylum if they didn't already apply for it in another country along the way.
Lee Gelernt is a lawyer with the ACLU; they say they'll sue to block the policy. And he's on the line from New York. Good morning.
LEE GELERNT: Good morning.
KING: All right. So you're saying this is illegal. What's your argument?
GELERNT: Our argument is that this violates the laws Congress has passed. I mean, ultimately this is an end run around Congress's decision to provide for asylum regardless of whether you transited through another country. At the end of the day, this is a separation of powers issue. Congress makes the laws about asylum. This administration doesn't like those laws, so it decided to rewrite them. But it cannot rewrite them unilaterally.
KING: Can you lay out logistically what this rule would mean for people who want asylum in this country?
GELERNT: Right. So what it says is if you've gone through any other country and arrived at our southern border, you're not going to be allowed to apply for asylum unless you applied in another country. So that means everyone other than Mexicans who are coming from Mexico - so not just Central Americans but anybody who has transited through another country will not be allowed to apply for asylum. Essentially, it's an end to asylum at the southern border.
KING: The United States and Canada have this so-called Safe Third Country Agreement, which means asylum-seekers have to apply to the first of either of those countries that they set foot in. Why is it wrong for the Trump administration to do the same for Central America?
GELERNT: Yeah. So I'm glad you asked about that because it's an important point. You know, a few things - first of all, we do not have a formal third-party agreement with any other country in Central America. So we don't - so if the administration was even going to go down that route, we would have to have an actual formal written bilateral agreement that those countries would provide asylum.
But the second point is, just having an agreement is not enough. Those countries have to be able to provide a safe, meaningful and efficient asylum process so that people can actually get asylum in those countries. And Guatemala, for example, is not equipped to provide asylum to all the people that would be sent there. But we don't even get to that point because there is no formal agreement.
What the administration is basically saying is, try your luck somewhere else. But they know very well that those countries would not be safe for people to wait in and would not be able to provide a fair and efficient and safe asylum process.
KING: The ACLU is challenging another one of the administration's asylum policies. It's called Remain in Mexico, and it means migrants have to wait in Mexico while the U.S. deals with their asylum claims. A federal appeals court said the administration could keep enforcing that policy for now. Does that concern you?
GELERNT: We are definitely concerned about it because there are thousands of people now, including families and young children, waiting in Mexico who are in real danger, have been suffering - have suffered assaults, are living in...
KING: No, no. I mean, does it - yes, we have reported on that. But does it concern you with respect to this new suit that you plan to file?
GELERNT: Well, I think we're ultimately going to prevail in that suit. But regardless, I think this raises very different issues. We believe that the current law that was - the current rule that was passed yesterday is violating the immigration laws directly. And so whatever ultimately happens with that case, we hopefully will prevail in this one because we believe it's directly contradictory to what Congress has done with the asylum laws.
KING: Lee Gelernt is deputy director of the ACLU Immigrants' Rights Project. Thanks.
GELERNT: Thank you. Transcript provided by NPR, Copyright NPR.