As promised, here are a few thoughts on what just happened regarding the ability of qualified Central American migrants to get political asylum in the US. 1
This was done in two parts. The Justice Department and the Department of Homeland Security jointly issued an interim final regulation barring people who entered between ports of entry from applying for asylum if there is a presidential proclamation suspending such entries. 2
The 2nd part was the actual proclamation from the White House. 3
I have prepared a detailed summary of both on my blog at blog.ilw.com/gregsiskind/20…. But here is basically how this works. 4
The WH is basing the new policy on its success in Hawaii v. Trump, the Muslim ban case that was decided by the Sup Ct last summer. That case upheld the President's use of Sect. 212(f) of the Immigration & Nationality Act which lets the President bar a group from entering the US.5
They also argue that the AG and DHS Secretary have discretion under the statute to deny asylum even if one meets the definitions. 6
The govt also goes into some detail to make the case that there is a massive crisis on the southern border to bolster a national interest argument. This is going to be necessary because of the way Hawaii v. Trump was decided which deferred to the President to make such a call. 7
They cite an increase in asylum applications by people apprehended and claim that many people who are released after a credible fear screening ultimately don't get asylum granted. 8
But they conveniently fail to note that most of these folks don't have lawyers (there's no right to one even though lives are on the line) & the chance of being able to successfully pursue asylum in front of a judge is pretty damn difficult when you're your own lawyer. 9
They also say it's dangerous for Border Patrol agents to apprehend these immigrants and also expensive. And fewer people in removal proceedings bc they're quickly removed from the country will reduce the backlog in immigration courts. 10
Finally, the regulation notes that people can still claim withholding of removal or eligibility under the Convention Against Torture, but the standard for showing a "reasonable fear" under these other remedies is much higher than asylum so most won't benefit. 11
The rule was released as an interim final rule which means it goes into force immediately. That's unusual and normally not permitted, but there are exceptions and the govt spends some time arguing why they are allowed here. 12
The White House in lockstep issued a proclamation this morning as called for under the new rule. Not surprisingly, it starts with the scare tactics about the caravan that we heard plenty of during the campaign. 13
The proclamation is actually pretty short. It says the entry of anyone into the US across the Mexican border is suspended for 90 days or the date on which an agreement permits the US to remove aliens to Mexico in compliance with the terms of the Immigration and Nationality Act.14
- It only applies to those entering after the proclamation.
- It doesn’t apply to people presenting themselves at ports of entry.
- It doesn’t limit the person from seeking withholding of removal or relief under the Convention Against Torture. 15
- It doesn’t apply to people presenting themselves at ports of entry.
- It doesn’t limit the person from seeking withholding of removal or relief under the Convention Against Torture. 15
Both the reg and the proclamation say the goal is to "channel" asylum applicants to ports of entry where they can submit their applications for asylum. Trump says he's going to provide more resources to ports because of the anticipated increase in workload. 16
But DHS notes in the interim rule that they expect backlogs at ports of entry to increase. And this is really the heart of the matter. The WH has deliberately been making it harder to file asylum claims at ports. The press has thoroughly documented this. 17
If people could have their applications heard in an expeditious manner rather than being forced to camp out for weeks in Mexico, then they likely wouldn't be entering between a port and requesting asylum after being apprehended by a Border Patrol officer. 18
Finally, not surprisingly, the @ACLU filed a suit challenging the new rule just hours after it was published. More on that soon. That's the end of this thread. 19
