By Leemor Banai
Throughout centuries, the United States has always been regarded as a beacon of hope for immigrants to come and begin a new life in the land of the free. Beginning on October 12, 2018, thousands of people from both Central and South America began their expedition across Mexico, seeking asylum in the United States. While this voyage seemed treacherous, this caravan’s arrival to the United States border will simply mark the beginning of their journey.
The modern international framework for asylum is to grant protection for people who fear returning to their homeland because of past persecution or a well-founded fear of future persecution. Under United States law, any alien who arrives in the United States, whether through a designated port of arrival or not, can apply for asylum. However, an alien does not have the right to asylum if the Attorney General determines that there are reasonable grounds for regarding the alien as a danger to national security (Section 2(A)(iv)). Moreover, the statute grants the Attorney General power to establish additional limitations and conditions under which an alien may be ineligible for asylum (Section 2(c)).
Operating under this authority, on November 8, 2018, Acting Attorney General Matthew Whitaker introduced new measures in order to deny asylum to migrants who enter the country illegally. This new rule states that all persons subject to a presidential proclamation concerning the southern border, pursuant to the Immigration and Nationality Act (INA), are ineligible for asylum.
The very next day, November 9, 2018, President Trump issued a proclamation addressing the mass migration through the southern border of the United States. Out of fear of overloading this country’s immigration and asylum system, along with a fear of having thousands of undocumented people roaming the country, President Trump suspended and limited the means for the upcoming caravan to seek asylum in the United States. This proclamation applies to all persons entering the country without inspection at the border.
Together, Whitaker’s rule and Trump’s proclamation prohibit people from obtaining asylum if they enter the country from somewhere along the southern border other than through a designated port of arrival.
Unsurprisingly, the Trump administration is receiving backlash that this policy shift is mean-spirited and unconstitutional. For decades, the United States’ immigration law has required officials to allow migrants who fear persecution in their home countries to seek asylum, regardless of whether they enter the country legally or illegally. The American Civil Liberties Union (ACLU) is suing the Trump Administration in the United States District Court in San Francisco, claiming a violation of the INA and the Administrative Procedure Act (APA) and arguing against Congress’ legislative intent that manner of entry cannot “constitute a categorical asylum bar.” The ACLU argues that, under title 8 of the U.S. Code Section 1158, a migrant may seek asylum regardless of whether they enter through a designated port or not, and, by initiating the policy change, Trump is going against Congress’s authority and violating the statute.
Moreover, the ACLU is claiming that the proclamation violates the APA. This statute requires a period of public notice and comment on proposed regulations to ensure the actions are transparent, lawful, and appropriately vetted. Trump’s administration claimed good cause to bypass this procedure required under Section 553(b)(B), as well as the 30-day waiting period required under section 553(d), by issuing the proclamation the day after Whitaker’s new rule.
In spite of the pending litigation, the administration expects the 5-4 conservative majority Supreme Court to uphold the policy’s legality and constitutionality. Moreover, it is relying on the Supreme Court ruling that upheld the “Muslim Ban,”which would allow Trump to exercise the same emergency authority as he did then. In Trump v. Hawaii, the Court ruled in favor of Trump’s executive order that suspended entry for 90 days of foreign nationals from seven countries identified as presenting heightened terrorism related risks. Under section 212 of the INA, President Trump has broad discretion to suspend the entry of non-citizens into the United States.
As the migrants arrive at the border, it is clear something will have to give. Due to President Trump’s border protection, the caravan is taking drastic measures to attempt to seek asylum. Risking permanent detention, migrants are striking the border in hopes that illegal entry will allow them to seek asylum. As of now, President Trump and his staff are set on maintaining the border and upholding the proclamation because of the president’s broad power to protect national security. However, it is ultimately up to the courts to rule whether the new immigration shift is unconstitutional and an overreach of presidential powers.