The midterm elections have come and gone. No one could (or should) disagree, no matter what your political affiliation is, that the politics leading up to and even since the election were and continue to be toxic, at best. Case in point was and is the President’s use of the “caravan” of migrants that trekked across Central America (that he claimed were going to invade our southern border) as the impetus to issue an “asylum ban”.
Specifically, on November 9, 2018, the President issued a proclamation that, in conjunction with a rule promulgated by both the Department of Homeland Security and the Department of Justice, bars any individual from seeking asylum who enters the United States from Mexico between official ports of entry. The proclamation will remain effective for 90 days (and can be extended) or until the establishment of a so-called “safe third country” agreement with Mexico.
Advocates not surprisingly (and in my view appropriately) are up in arms, arguing that the President’s action eliminates fundamental due process protections for asylum seekers. They specifically argue that U.S. law clearly states (and it does) that all persons arriving to the United States, no matter where they enter from, have the right to seek asylum. It is true that not everyone is eligible for asylum, but nevertheless, under current U.S. law, everyone has the right to pursue it no matter whether they seek asylum at a port of entry or otherwise.
Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “any alien who is physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival … may apply for asylum[.]” This seems pretty clear to me.
As a result of the President’s actions, several immigration advocacy organizations sued in U.S. District Court in San Francisco to halt the asylum ban. In a ruling issued on November 19, 2018, U.S. District Judge Jon S. Tigar temporarily blocked the President’s policy of denying asylum to migrants who cross the southern border into the United States without inspection, saying the policy likely violated federal law on asylum eligibility. Really? No kidding.
Judge Tigar wrote that “[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Trump Administration appealed, and just recently, the 9th Circuit Court of Appeals, in a 2-1 decision, also refused to immediately allow the Trump Administration to enforce the ban.
The asylum ban represents yet another effort by the President to turn away those seeking protection under our asylum laws. Since taking office, the Trump Administration has detained more asylum seekers, it created the infamous policy that separates asylum-seeking families in connection with its “zero-tolerance” policy, and former Attorney General Jeff Sessions issued the decision Matter of A-B-, which restricts the ability of domestic and gang violence survivors to obtain asylum.
Writing for the 9th Circuit, Judge Jay Bybee, a nominee of Republican President George W. Bush, stated, “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.’
Collectively, all of the President’s measures undermine our country’s longstanding commitment to protect those fleeing violence and persecution. Since its inception, the United States has been a beacon for those pursuing freedom and protection against persecution. The President and Congress can ensure the integrity of our borders while still upholding these fundamental truths. They just need to do it thoughtfully and lawfully.