President Trump’s latest executive action, which seeks to limit the ability of migrants to apply for asylum at the U.S.-Mexico border, was met with widespread criticism Friday from legal experts, human rights advocates and some members of Congress, who described it as not just discriminatory and inhumane, but also illegal under both U.S. and international law.
“Neither the president nor his Cabinet secretaries can override the clear commands of U.S. law, but that’s exactly what they’re trying to do,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement. “This action undermines the rule of law and is a great moral failure because it tries to take away protections from individuals facing persecution — it’s the opposite of what America should stand for.”
Within hours of Trump signing the proclamation Friday morning, the ACLU, along with the Southern Poverty Law Center and Center for Constitutional Rights, had filed a federal lawsuit challenging the legality of the new asylum policy.
Leon Rodriguez, former director of U.S. Citizenship and Immigration Services (USCIS), which oversees the asylum application process, described the policy to Yahoo News as both illegal and a “retreat of American leadership and credibility to abrogate an international understanding that has existed for decades in this unilateral and, in many respects, cruel manner.”
The new policy bars asylum claims from migrants who enter the U.S. from Mexico anywhere other than at the 48 official ports of entry. Under existing law, anyone physically present in the U.S. may apply for asylum regardless of their immigration status or how they entered the country.
“The arrival of large numbers of aliens will contribute to the overloading of our immigration and asylum system and to the release of thousands of aliens into the interior of the United States,” reads the text of Trump’s presidential proclamation. “I therefore must take immediate action to protect the national interest, and 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.”
Rodriguez suggested that while an illegal entry could be considered a factor in determining whether an individual is entitled to asylum, “the idea of declaring a whole class of people ineligible to asylum merely because they were apprehended not at a port of entry seems to be contrary to both U.S. asylum law and to the Geneva Convention on Refugees.”
“This is an attack on the due process rights of asylum seekers and just the latest iteration in this administration’s ongoing, systematic effort to shut out asylum seekers and other vulnerable populations from the nation,” said Jason Boyd, policy counsel at the American Immigration Lawyers’ Association. “It’s not hyperbole to say that [it] will put the lives of these vulnerable asylum seekers at risk.”
Boyd raised the question of whether asylum seekers will actually be given the opportunity to make their claims to immigration officials at the ports of entry. Though DHS officials insisted that the process for handling asylum claims at these official locations will remain unchanged under the new regulations, Boyd noted that there has already been a “well-documented, ongoing practice over the course of the administration of turning away asylum seekers at ports of entry.”
In fact, the DHS’s Office of Inspector General noted the existence of such a practice in a report examining family separation issues under the “zero tolerance” policy that was published in September. According to the report, Customs and Border Protection “regulated the number of asylum seekers entering at ports of entry,” a practice which, the inspector general’s report suggests, “leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally.”
“CBPs own practices are fueling precisely the types of outcomes that this rule and proclamation seek to address,” Boyd told Yahoo News.
Adam Isacson, director for defense oversight at the Washington Office on Latin America, a nongovernmental research and human rights organization, echoed Boyd’s concerns, noting that WOLA’s own research from earlier this year found similar evidence of border officials turning asylum seekers away at ports of entry.
“The Trump administration wants people fleeing violence to apply for asylum at our severely understaffed ports of entry, where border officials are more likely than not to tell families to come back some other time,” Isacson said in a statement. “This is a deliberate attempt to throttle families’ right to asylum and will overwhelm our ports of entry.”
Asked about recent reports of asylum seekers being turned away from official ports of entry during a background press briefing Friday, a CBP official acknowledged that “there are capacity issues at ports of entry that will require us, from time to time, to hold people at the limit line until we have capacity to handle” their claims, insisting the situation is “no different today than it has been for past several years.”
But the DHS gave no indication it was planning to increase the CBP’s capacity to process asylum seekers at the border stations. Instead, a CBP official repeatedly emphasized that that processing asylum claims is among the many responsibilities officers are tasked with at ports of entry, including drug enforcement.
“Resources are finite, so if we pull personnel to prioritize migrants, it will come at the expense of other priority missions,” said the official who, like the others, would only discuss actions related to the proclamation on background.
Though slated to be in effect for 90 days starting at 12:01 a.m. Saturday, a senior Justice Department official told reporters that the proclamation could expire sooner if U.S. officials reach an agreement with the Mexican government that would allow the U.S. to deport citizens of other countries directly to Mexico rather than their home nations.
In the meantime, the U.S. is encouraging Central American migrants, like those in the caravans currently inching toward the border, to seek asylum in Mexico if they feel their lives are in danger.
“Mexico is undoubtedly a safe country for these people fleeing persecution,” a DHS official said Friday.
The Mexican government’s own data shows that requests for asylum in that country have increased significantly over the past five years. However, international human rights groups dispute the notion that Mexico is a safe alternative to the U.S., pointing to various reports that show refugees and migrants are especially at risk of sexual assault, trafficking, kidnapping and other forms of violence that are pervasive in Mexico.
In fact, the purpose of caravans is to highlight the dangers Central American migrants face on the journey through Mexico and to provide safety in numbers. Even so, just this week, Mexican officials reported that at least 100 migrants, including children, who’d been traveling as part of the 4,000-person caravan that recently reached Mexico City were kidnapped along the way by cartel members.
Despite documentation of systemic gang violence and pervasive domestic abuse in the so-called Northern Triangle countries comprising Guatemala, Honduras and El Salvador, Trump and members of his administration insist the majority of migrants from these countries do not have legitimate asylum claims and are being coached on what to tell asylum officers to exploit “loopholes” in U.S. asylum law.
Rodriguez disputed this, telling Yahoo News that he has “tremendous confidence” in the asylum officers at USCIS, who he described as “very, very highly trained professionals, very skilled interviewers, [who are] thoroughly briefed on country conditions. They have the tools to screen out fraudulent claims.”
Under the new policy, Border Patrol agents will still be required to refer to USCIS any migrants apprehended near the border who express a fear of returning to their home country. But now, before conducting a “credible fear” interview, asylum officers will have to assess whether they are even eligible to apply for asylum, based on the president’s proclamation.
Democratic Reps. Jerrold Nadler, ranking member of the House Judiciary Committee and Zoe Lofgren, ranking member of the Subcommittee on Immigration and Border Security, issued a joint statement admonishing the president not to engage in “unconstitutional attempts to circumvent the law.”
“It is particularly ugly that today’s announcement seeks to impose illegal restrictions on migrants fleeing violence and abuse,” they said, urging Trump to work with Congress on bipartisan immigration reform.
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