DOJ and DHS Issue New Rule to Block Certain Asylum Seekers at US/Mexico Border

by Joseph McKeown

On November 8, Acting Attorney General Matthew Whitaker and Department of Homeland Security Secretary Kirstjen Nielsen announced an Interim Final Rule declaring that foreign nationals “who contravene a presidential suspension or limitation on entry into the United States through the southern border with Mexico issued under section 212(f) or 215(a)(1) of the Immigration and Nationality Act (INA) will be rendered ineligible for asylum.” Under the new rule, based on the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” that was signed by President Trump on November 9 the following day, migrants seeking asylum will have to make their claims only at official ports of entry on the border where according to the rule they will “be processed in a controlled, orderly, and lawful manner.”  

According to current US law, migrants who enter the country “whether or not at a designated port of arrival” can apply for asylum, and consequently, many migrants (including children and families) who cross the US/Mexico border without documentation present themselves to Customs and Border Protection (CBP) officers and claim asylum. The Trump administration, however, believes it can modify this because of Section 212(f) of the Immigration and Nationality Act which states that “[w]henever 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, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (Emphasis added.)

In their joint statement, Attorney General Whitaker and Secretary Nielsen emphasize that asylum is a “discretionary form of relief provided by the Executive Branch” to those fleeing persecution on the basis of their race, religion, nationality, membership in a particular social group, or political opinion.  They claim as justification for the new rule: “Our asylum system is overwhelmed with too many meritless asylum claims from aliens who place a tremendous burden on our resources, preventing us from being able to expeditiously grant asylum to those who truly deserve it.”

Immigration practitioners and advocates have strongly condemned the new rule, noting that many official ports of entry have turned away those who wish to apply for asylum. The American Immigration Lawyers Association (AILA) notes that while not everyone qualifies for asylum, it is still important for all claims to be heard. They state:

The Trump administration is using a caravan of desperate people hundreds of miles away as an excuse to gut our nation’s laws and block asylum seekers from getting a fair shot at asylum. U.S. law guarantees a fair and meaningful chance to request asylum, even for those entering between ports…Forcing asylum seekers to apply at ports of entry means even more people will be turned away, something the administration is already doing.

The American Civil Liberties Union (ACLU) has filed suit challenging the new rule. Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, says: “President Trump’s new asylum ban is illegal. 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. 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.”

UPDATE NOVEMBER 21, 2018: US District Judge Jon Tigar has temporarily blocked the Trump administration from refusing asylum to individuals who cross the US/Mexico border without documentation. “Individuals are entitled to asylum if they cross between ports of entry,” says Baher Azmy, a lawyer for the Center for Constitutional Rights, which along with the American Civil Liberties Union (ACLU) brought the lawsuit against the government.  “It couldn’t be clearer.” So far approximately 3,000 migrants from the first of the groups have arrived in Tijuana, Mexico. ACLU lawyer Lee Gelernt says that while they don’t “condone” individuals entering between official ports of entry, they often do so because “they’re in real danger” and “Congress has made the decision that if they do, they still need to be allowed to apply for asylum.” The Justice Department and Department of Homeland Security in a joint statement say they will continue “to defend the Executive Branch’s legitimate and well-reasoned exercise of its authority to address the crisis at our southern border.”