On November 9th the internet was buzzing with news of the President’s latest move to “protect the integrity of our immigration system and our national sovereignty”. The White House website published a “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” and released an accompanying Fact Sheet for those who may need a more digestible version. The Proclamation mandates that applicants for asylum who arrive at the southern border must present themselves at a lawful port of entry to apply and the Fact Sheet states clearly that
any alien who illegally enters our country will be ineligible for asylum.
Ignoring the fact that both the Immigration and Nationality Act (INA), the 1980 Refugee Act, and our obligations as a signatory to the 1967 United Nations Protocol Relating To The Status of Refugees require the United States to accept asylum applications from foreign nationals regardless of their manner of entry, the Proclamation cites Section 212(f) of the INA which allows the President to “suspend the entry of all aliens or any class of aliens…he may deem to be appropriate”. No doubt the President is emboldened by the fact that the Supreme Court agreed that this section of law gave him the power to implement his infamous 2017 Travel Ban. It seems he now believes it gives him carte blanche to implement any restrictions he decides upon, whether or not those restrictions clearly conflict with the established law of the land.
This Proclamation is clearly aimed at the migrant caravan which has been slowly making its way through Mexico towards the southern border; the President said as much in a speech on November 1st, the text of which was published on the White House website: “It’s a large number of people that are tough. They’ve injured, they’ve attacked, and the Mexican police and military has actually suffered…they should turn back now because they’re wasting their time”. Some news outlets have reported that the President has been fuming for weeks as he receives reports of their progress. He has publicly demonized these (mostly Honduran) people as “invaders”, has hinted that “unknown Middle Easterners” are part of the caravan, and has deployed troops to the border ostensibly to assist CBP with any issues they may encounter in the processing of any asylum applications. He even claimed in a press conference on November 10th that those troops would be justified in firing on any migrant who might throw a rock because he equates being hit with a rock with being hit by a bullet.
Our current asylum laws were crafted with a basic understanding that not everyone who is fleeing persecution or armed conflict or outright genocide has the time, the ability, or the knowledge of immigration laws to stop at a U.S. Embassy to apply for either a visa or refugee status.
Therefore the statute unambiguously states that a person inside the U.S. who fits the description of a refugee (as defined in the 1951 U.N. Refugee Convention) may apply for asylum status “whether or not [they arrive] at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters”. (INA Section 208(a)(1))
It is a basic principle of statutory interpretation that when a statute promulgated by Congress says a certain thing unambiguously, neither a government agency nor the President can disregard it. If a statute is ambiguous, the Supreme Court has the final word on its interpretation and that interpretation is binding on all branches of the government. Congress can always change the law with an appropriate statutory amendment or repeal; that is a cornerstone of our democracy. If the President gets to disregard a statute, and substitute his idea of what the law should be we do not have a democracy, we have a dictatorship.
The new policy only allows foreign nationals to apply for asylum at official ports of entry such as international airports or land crossings. Yet we have heard reports of CBP officers telling people who do try to claim asylum at these ports that they cannot, and must return home. The Dallas Morning News reported in the days following the publication of the Proclamation that CBP officers and their Mexican counterparts were preparing to forcibly remove asylum seekers from bridges and roads leading to border crossings. So under the new policy you cannot apply for asylum if you cross the border without inspection, but if you instead line up for days (as many have) to cross from Tijuana to apply you are sent home at gunpoint. In effect, no one will be able to file for asylum, unless they are able to get here on a visa.
The Proclamation is clearly an attempt by The White House to perpetuate the ridiculous notion that
there is a foreign force massing along the southern border, ready to strike and invade the United States. It contains many half truths, plainly provocative language, and uncorroborated allegations in an effort to convince people that this sudden change of policy will protect them from the invaders.
For example, the group “…intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit.”
This paragraph alone demonstrates a fundamental misunderstanding of asylum laws. Firstly, while crossing the border without inspection or proper documentation is unlawful, there is certainly an argument that doing so solely for the purpose of claiming asylum is not. However, presenting yourself at the border and requesting asylum is most definitely NOT unlawful. If it were, then asylum would only be available to visa holders, which plainly conflicts with the rationale of the 1951 Convention.
Secondly, it is a principle of refugee law that every individual who arrives in the U.S. and asserts a claim for asylum MUST be given an opportunity to be heard. The White House does not get to turn away an entire group of people because “past experience” suggests they may not qualify for asylum; they must be afforded an opportunity to tell their story and have their claim adjudicated by a government officer. At least one federal district court agrees: this week a judge of California’s Northern District temporarily blocked implementation of this new policy on the grounds that it “irreconcilably conflicts” with the immigration laws. A full hearing has been set for December 19th.
The silver lining in this xenophobic cloud is that Section 2(c) says that those who do cross the border at a non-lawful entry point will still have the option of applying for withholding of removal, sometimes known simply as “withholding”. Withholding is similar to asylum but is very much a lesser status. It is also significantly harder to get than asylum. Whereas with asylum an applicant has to prove there is a 10% chance of persecution, the burden on an applicant for Withholding rises to move than 50%.
For those apprehended by Border Patrol, they have to pass a preliminary interview to see if they will even be given a chance to apply for it at all.
For those who come through Port of Entry, they will be given what is called a Credible Fear interview where they will have to prove a “significant possibility” of persecution.
However, for those limited to Withholding of Removal by this policy, they will have to prove that persecution is “more likely than not”.
Only 25% pass this interview which is often conducted without attorneys and in an applicant’s state of confusion and fear while in detention. If Withholding is granted it is only to the applicant, no derivative spouses or family members are permitted meaning that each family member must qualify by themselves. Withholding means that the judge agrees that you would face harm in your country but you are either ineligible for asylum (possibly because of a criminal record) or your claim does not meet the standards for an asylum grant. A work authorization card is permitted but no travel document is allowed and there is no guarantee of eligibility for a green card the way there is with an asylum grant.
People with pending asylum applications need not worry; the Proclamation makes clear that it only applies to persons who attempt to enter the country after November 9th. The Proclamation claims that one of the reasons for the new policy is “to maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum.”
The question must be asked: how will we know who is a legitimate asylum seeker if we send all of them back to potential death or imprisonment without even affording them the basic due process that refugees are entitled to?
By – Alexandre Law Firm