New Rule on Asylum at Southern Border Violates Letter and Spirit of Asylum Law

The law as passed by Congress is very clear as to who may seek asylum in the United States.  Immigration & Nationality Act Section 208 states:

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 and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable section 235(b).

U.S. law has long made asylum available to any individual within our borders or at our door.  This approach was driven by the acknowledgement that asylum seekers were fleeing a dangerous situation and that ordinary rules of process should not disadvantage the asylum seeker.  As a statute enacted to protect individuals from persecution, asylum is meant to be generous.  Restrictions on asylum eligibility have taken the form of “particularly serious crimes” or the persecution of others or firm resettlement in other countries.  These limitations on asylum eligibility require negative conduct far more severe than what might otherwise bar a person for admission into the U.S.  Again, this reflects a long-standing national consensus that protection should be offered as widely as possible due to the nature of the threat that refugees seek to escape.

If the current administration has done anything, it has sought to dismantle long-established national consensus on a wide variety of matters.  This week, the Trump administration has attempted to rewrite this life-saving provision of law to restrict who may obtain asylum.  In a move that is certain to face legal challenge, the administration stated that it will deny asylum eligibility to anyone who crosses into the United States across the Southern border with Mexico at someplace other than a port of entry for the next 90 days.  In a interim regulation published today and an accompanying executive order, the administration stated that individuals who cross the Southern border at some place other than a port of entry will be ineligible for asylum.  This rule goes into effect today and is in effect for the next 90 days.  This exclusion from asylum eligibility does not apply to people who crossed the U.S. border without inspection before today. 

The new rule states that individuals apprehended after crossing the border will be, as they are now, subjected to the expedited removal process.  This is a process by which an immigrant may be removed from the country without a hearing in front of an immigration judge.  If, however, during the encounter with U.S. Customs and Border Protection, an immigrant expresses a fear of persecution, the immigrant must be afforded an opportunity to make a preliminary showing of asylum eligibility before an asylum officer.  That preliminary showing occurs in a process known as a credible fear interview.  In that interview, the immigrant must be able to articulate a fear of persecution that demonstrates that the immigrant may be able to make a successful asylum claim.  The burden of proof on the immigrant is low, as Congress did not want to force these interviews on the border to be full-blown asylum hearings.  If an immigrant passes a credible fear interview, they get an asylum hearing in front of an immigration judge.  Asylum seekers at the border are detained until they have a credible fear interview.  If they pass the credible fear interview, they are often released while they await a hearing.

The new rule will subject asylum seekers who enter the U.S. through Mexico at places other than a border crossing to a similar process known as reasonable fear.  A reasonable fear is an interview in which an applicant must show that they have a chance at qualifying for withholding of removal or protection under the Convention Against Torture.  For both forms of protection, the standard of proof is higher.  The U.S. Supreme Court has said that, in order to qualify for asylum, one must show that there is a 10% chance that persecution feared will occur.  To qualify for withholding of Torture Convention protection, an applicant must show that there is a 51% chance that persecution or torture will occur.  While the new rule does not seek to eliminate all forms of protection from persecution, it makes it less likely that an individual will meet her burden of proof.

It is reasonable to ask why shouldn’t applicants be required to go through a port of entry (POE).  There are several answers for this.  First, for several years now, CBP has been severely restricting the number of people that can ask for asylum at the port of entry.  They have literally blockaded bridges into the U.S. to prevent people from seeking entry for the purpose of applying for admission.  Some of the more organized ports have instituted lotteries to let people in to apply.  Asylum seekers are often left waiting outside POEs for days or weeks for a chance to make the claim.  These applicants are at the mercy of Mexican gangs, cartels, smugglers, police and the elements.  Waiting for a chance to apply in Tijuana or Juarez is a very dangerous proposition.  Second, many migrants are under the control of smugglers, who do not let them go to a port of entry.  Where an immigrant is compelled to cross somewhere other than a border, such a rule has no effect on their behavior.

Finally, and most importantly, it is against the law.  We started this post with the asylum statute which makes it clear that an individual in the U.S., regardless of how they arrived, may seek asylum.  The executive order conflicts directly with the statute.  An executive order can not override a statute.  The President likes to say that he believes in the rule of law.  In this case, the law is quite clear and it is the executive order and not the asylum seeker who is in conflict with the law.  Many people also like to say that we do not have kings in America.  That remains to be seen.  If the President can issue an order that directly contradicts a statute passed by Congress and the courts sanction this behavior, we are a lot closer to an autocracy than we are to a democracy.  This is no longer just about asylum seekers.

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