President Donald Trump followed through Friday on his legally questionable plan to deny asylum to undocumented immigrants who cross the border illegally.
“We’re not letting them in, but they’re trying to flood our country,” he told reporters.
The move was quickly met with a legal challenge by the American Civil Liberties Union, Southern Poverty Law Center and other immigrant rights groups aiming to block it from going into effect. The groups contend in a lawsuit filed Friday that the policy would violate U.S. and international law that protects people who fear for their lives and safety in their native countries.
But Trump, frustrated with a slowly approaching migrant caravan, a record number of families apprehended at the southern border and a yearslong swell of asylum-seekers, went ahead with the policy anyway.
Through a new interim rule and a presidential proclamation, the administration plans to deny asylum for immigrants who request it after crossing the border illegally rather than at a port of entry ― regardless whether they have an otherwise meritorious claim. The change is set to take effect Saturday and will continue for at least 90 days. It applies to unaccompanied minors, although a Trump administration official initially told reporters on Friday that it would not.
Asylum-seekers may still request protections legally at ports of entry, but many of them already face weeks-long waits that leave them in Mexico because U.S. border and asylum officers say they have no capacity to process them. The Department of Homeland Security said in a statement that it “is surging additional resources to support our ports of entry,” but emphasized that border officers have other missions as well, possibly putting asylum processing lower on the priority list.
The Trump administration has made clear that its preference would be for asylum-seekers not to come to U.S. ports of entry. An official told reporters Friday that Central Americans should seek asylum in Mexico instead.
The proclamation Trump signed says the suspension of entry would either end in 90 days, or when Mexico signs a “safe third country” agreement that bars Central Americans from asylum in the U.S. if they cross through Mexico. Mexico has resisted such an agreement, and human rights advocates argue the country isn’t secure enough to qualify as a “safe third country” anyway.
U.S. law states that immigrants physically present in the country may apply for asylum “whether or not at a designated port of arrival,” with limited exceptions. Immigrant rights groups have argued that barring asylum for people who crossed illegally would be a blatant overreach.
The ACLU and other groups filed a lawsuit Friday afternoon in U.S. District Court in California’s Northern District, arguing the policy should be blocked from going into effect.
“President Trump’s new asylum ban is illegal,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement. “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.”
The Department of Homeland Security and Department of Justice issued a statement later Friday saying they were confident they would prevail in court and accused the human rights groups of being disdainful of the law.
“The fact that the ACLU and its partners would go to court to specifically sue for the right for aliens to enter the country illegally is demonstrative of the open border community’s disdain for our nation’s laws that almost all rational Americans find appalling,” DHS spokeswoman Katie Waldman said in the statement.
However, Trump administration officials argued on a call with reporters that the asylum policy change is justified on similar grounds to the president’s travel bans, the final of which was allowed to go into effect by the Supreme Court. By law, the president can suspend the entry of a class of immigrants by proclamation if he finds their entry “would be detrimental to the interests of the United States.”
“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,” DHS Secretary Kirstjen Nielsen and acting Attorney General Matthew Whitaker said in a statement. “Today, we are using the authority granted to us by Congress to bar aliens who violate a Presidential suspension of entry or other restriction from asylum eligibility.”
Even if the policy change is blocked in lower courts, the Trump administration believes the Supreme Court will eventually rule in its favor thanks to Trump’s successful nomination of Justice Brett Kavanaugh, NBC News reported based on conversations with two officials.
Under the new policy, migrants denied asylum for crossing the border illegally could potentially avoid deportation by being granted “withholding of removal,” a status that does not include a path to citizenship and can be revoked, or could be given protections under the United Nations Convention Against Torture. They would be assessed using the “reasonable fear” standard, which is a higher bar to clear than the one for asylum. Administration officials said the policy would meet the United States’ international obligations since it would allow migrants to avoid removal through “withholding of removal” and the Convention Against Torture.
The Trump administration has already made it harder to seek asylum in the U.S. Then-Attorney General Jeff Sessions ― whom Trump ousted on Wednesday ― instructed immigration judges in June to “generally” deny asylum based on an individual experiencing gang or domestic violence. That, in turn, led to an uptick in asylum officers rejecting applications, according to immigration attorneys near the border.
Asylum approval rates in immigration court in the 2018 fiscal year were at their lowest in two decades, BuzzFeed reported last week.
Meanwhile, immigrant rights advocates say the administration is increasingly using what it calls “metering” to restrict the number of people who can seek asylum at ports of entry each day ― now the only place where migrants can request the reprieve. Already, many people must wait weeks or months to even get an appointment, leaving them in Mexico where shelters are struggling to house them and they can be targeted by gangs. This leads to some asylum-seekers choosing to cross illegally and request help afterward instead.
The DHS Office of Inspector General acknowledged as much in a report in September, in which it wrote that metering “may have unintended consequences.”
“OIG saw evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally,” the report says.
“Seeking asylum is not a crime, and people are entitled to seek asylum regardless of where they cross the border.”
Eleanor Acer of the nonprofit Human Rights First said the administration “has systematically undermined the asylum and refugee protection systems.”
“It has illegally turned away refugees at official border points, forcing desperate individuals to make the dangerous crossing between points,” she said in a statement. “Seeking asylum is not a crime, and people are entitled to seek asylum regardless of where they cross the border.”
The Trump administration has balked at its inability to quickly deport or indefinitely detain asylum-seekers, families and children, based on space constraints and court-based limitations on how long kids can be locked up.
DHS released a statement on Thursday accusing migrants of being coached by smugglers and advocates to use the “magic words” to be considered for asylum. Nearly 90 percent of migrants from Central America passed the first step of screening for asylum, but only 9 percent were ultimately granted the protections, according to DHS.
Trump has taken other dramatic steps in recent weeks that he claims are justified by migrant caravans still hundreds of miles from the border. Trump sent more than 5,000 troops to the border to assist Customs and Border Protection, although the military is not authorized to make immigration-related arrests. Before the election, the military decision was called Operation Faithful Patriot; the Pentagon dropped the name without explanation the day after the midterms. (Defense Secretary Jim Mattis insisted the deployment was not a stunt.)
There could be other actions against undocumented immigrants and their families to come, even though Democratic gains in the House will make passing the president’s agenda through Congress more difficult beginning next year. Trump said before the midterm elections that he would sign an executive order to end birthright citizenship. Under the 14th Amendment, babies born in the U.S. are citizens regardless of the immigration status of their parents, but Trump wants to take that away ― another action ripe for a legal challenge.
“We do not expect any one action to solve all of the myriad, legion of flaws in our nation’s current immigration system,” a senior administration official said. “We are looking at a number of possibilities.”
This article has been updated to include the legal challenge to Trump’s actions and to correct a misstatement by an administration official who said, incorrectly, that the bar on asylum would not apply to unaccompanied minors.