By Attorney Eric R. Welsh
Donald Trump has made a political career on demonizing immigrants, and his actions in office have been consistent with his bombastic hardline rhetoric: killing DACA, separating families at the border under a “zero tolerance” policy, and now, issuing a Proclamation that America will ignore its international obligation (not to mention moral duty) to offer safe refuge to persons fleeing persecution. This time, Trump may have gone too far.
On November 8, 2018, Trump’s new Acting Attorney General (Matthew G. Whitaker) and the Secretary of Homeland Security (Kirstjen M. Nielsen) promulgated a regulation that renders ineligible for asylum any person whose entry into the U.S. is prohibited by a Presidential proclamation concerning the southern border. Not coincidentally, the President issued just such a proclamation the very next day (November 9, 2018), suspending the entry of persons without inspection along the southern border between the U.S. and Mexico. Together, the regulation and the Proclamation bar any person who enters the country without permission at the southern border from applying for asylum in the United States. The Proclamation and the new regulation are prospective, meaning that they only apply to entries after November 9, 2018.
The legality of Trump’s Proclamation and the new regulation are in serious doubt. The Proclamation and the regulation appear to be in clear conflict with the U.S. federal asylum statute, which unambiguously states that any alien who is physically present in the U.S. or arrives at the U.S. “whether or not at a designated port of arrival” and “irrespective of such alien’s status” may apply for asylum. Additionally, the regulation that makes the Proclamation effective was promulgated without the required 30-day notice-and-comment period (the President and the agencies asserted “good cause” for bypassing notice, as well as an exception for matters relating to “foreign affairs”).
The same day that Trump issued his Proclamation, the American Civil Liberties Union (ACLU) filed a complaint for declaratory and injunctive relief in U.S. District Court. First, the ACLU noted the obvious: the persons seeking U.S. protection at the southern border are coming from some of the most dangerous places on earth, most from the “Northern Triangle” (El Salvador, Guatemala, and Honduras), a region that is experiencing “epidemic levels of violence” that most human rights groups have compared to active war zones. Most of those who leave are fleeing “life-or-death situations,” including “violence against women by criminal armed groups,” and many have legitimate claims to asylum under our existing laws.
Next, the ACLU noted that entry at a lawful port is difficult or impossible for most refugees. Many lack formal education and are not aware that designated locations exist, and even when they do, those locations are hard to find and difficult to access. Many news sources have reported that asylum-seekers have been refused access to lawful ports by Customs and Border Protection (CBP), or were arbitrarily denied asylum or subjected to excessive delays in processing. When asylum-seekers try to enter the U.S. “the right way,” they face threats, intimidation, and deliberate misinformation. They are forced to wait in Mexico, sometimes for four to six weeks, before an agent will even consider their claim. As the ACLU notes, these delays can be life-threatening, since the region of Mexico near the border is “a particularly violent area with limited law enforcement capacity,” and there have been numerous reports of asylum seekers turned away at the border who are raped, beaten, and kidnapped and held for ransom by Mexican cartel members.
Mexico is no safe refuge, and by ignoring its legal and moral responsibility to provide humanitarian relief, the U.S. has exposed these refugees to additional harm. Trump’s hardline approach to immigration has forced America to confront an identity crisis: are we a fearful nation of isolationists, disdainful of cultural and ethnic diversity and unwilling to help families fleeing violence and persecution? Or are we willing to live up the proud creed engraved at the base of the Statue of Liberty: “Give me your tired, your poor, your huddled masses yearning to be free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
The courts may be instructive, but ultimately, We the People must decide what kind of country we want to be.