Trump should withdraw his asylum proclamation

On November 9, 2018, President Donald Trump issued a Presidential Proclamation in anticipation of the arrival of substantial numbers of aliens traveling in large groups who intend to enter the United States unlawfully to seek asylum at the Southern border.

In fiscal year 2018, 396,579 aliens were apprehended entering the United States unlawfully between ports of entry.

The proclamation suspends the entry of asylum-seeking aliens who make illegal entries along the southern border. They will be put in expedited removal proceedings, which has mandatory detention, and the only relief available to them will be deportation to a country where they will not be persecuted or tortured.

The objective is to channel aliens to ports of entry where their applications can be processed in a controlled, orderly, and lawful manner; and to prevent those who enter without inspection from contributing to the overloading of our asylum system while negotiations are being conducted with Mexico for a safe-third-country agreement.

A safe-third-country agreement with Mexico would make non-Mexican asylum seekers who pass through Mexico on their way to America statutorily ineligible for asylum in the United States. If they want asylum, they will have to apply for it in Mexico.

The proclamation will not reduce the need to detain and screen aliens who are apprehended after making illegal entries. The courts that adjudicate asylum applications are hopelessly overloaded. And diverting the asylum seekers to ports of entry will create new problems. DHS does not have the resources needed to handle a large increase in asylum seekers at the ports of entry.

Immigration advocates are complaining already about asylum seekers experiencing long waits and unacceptable treatment at ports of entry.

The immigration court can’t handle the asylum cases it already has.

The backlog was 768,257 cases in September 2018. Add 330,211 cases that have been reopened because they were administratively closed improperly by the previous administration, and the backlog balloons to 1,098,468 cases. If the courts worked on nothing but these pending cases, it would take them more than five years to clear the backlog.

It isn’t possible to enforce the immigration laws under these circumstances.

The proclamation will just reduce the rate at which the backlog increases … and that will only happen if the courts let Trump implement it.

Courts are contradictory and time consuming.

The ACLU has filed a complaint in a Ninth Circuit Federal District Court to block the implementation.

The ACLU asserts that the proclamation violates the asylum provision in the Immigration and Nationality Act (INA) which states 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.”

The proclamation is based on section 212(f) of the INA, which says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants…

I expect Trump to lose in the lower federal courts but prevail when the case reaches the Supreme Court, as he did in the travel ban case.

In the travel ban case, the Supreme Court held that section 212(f) exudes deference to the president in every clause. It entrusts the president to decide whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. The sole prerequisite is that the president find that admitting the covered aliens would be detrimental to the interests of the United States.

It was 17 months from the time Trump first issued his travel ban until the Supreme Court upheld it.

Detention will continue to be a major problem, regardless.

Under the proclamation, DHS would not have to screen aliens to determine whether they have a credible fear of persecution for asylum purposes, but it would have to screen them to determine if they have a reasonable fear of persecution.

The United States is a signatory to the Refugee Convention, which prohibits expelling a refugee to a country where it is likely that he will be persecuted. Asylum just requires a well-founded fear of persecution. 

This condition is met with the withholding of deportation provision in the INA for aliens who establish that it is more likely than not that they will be persecuted.

America also is a signatory to the Convention Against Torture (CAT), which provides that, “No State Party shall expel … a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Relief under these provisions is limited to sending the alien to a country where he would not be persecuted or tortured.

The proclamation should be withdrawn until these problems can be resolved.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.