Presidential proclamations cannot take away the right to seek asylum

Presidential proclamations cannot take away the right to seek asylum
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On Nov. 9 the Department of Homeland Security (DHS) and the Department of Justice (DOJ) published an interim final rule setting the stage for Trump to issue by “proclamation” — a prohibition on asylum for those who cross the southern border without permission. 

Shortly thereafter Trump issued a proclamation, which purports to take away the right to asylum from people who cross the border without documents starting on Nov. 10 and lasting for 90 days.

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The manner in which someone enters the country has little legal bearing on a person’s right to seek asylum. The Board of Immigration Appeals has long held that “an alien’s manner of entry or attempted entry . . . should not be considered in such a way that the practical effect is to deny [asylum] relief in virtually all cases.” Matter of Pula.

Trump lists several reasons for his proclamation, none of which hold up under review. First, he states that most of the individuals traveling in the caravan will not be eligible for asylum, prejudging their cases without any evidence, except the ludicrous claim that because others in the past have not qualified, these new asylum seekers also will not qualify. 

According to the government’s own numbers, if this policy had been applied in fiscal year 2018, 4,500 people who were granted asylum would have been arbitrarily denied protection and deported. This is a lot of lives the government is playing with.

Trump goes on to say that people fleeing persecution should not have the right to asylum in the U.S. because they rejected opportunities to apply in Mexico. Not only is there no evidence backing up this claim, but individuals I have worked with often do not apply in Mexico because the gangs they are fleeing from can follow them into Mexico. Furthermore, the issue of whether someone has access to protection in a third country is already a consideration that is evaluated in each case.

Lastly, Trump claims it is necessary to deny asylum to this class of people because there are large numbers of asylum seekers who will be crossing illegally. Even if true, large numbers do not justify canceling an individual’s legal right to seek protection.

In a similar vein, Whitaker singles out the northern triangle countries, indicating that the administration is applying a sweeping policy to people of all countries based on a discriminatory animus against particular nationalities.

Trump and Whitaker also state that court appearance rates are low (data contradicts this claim), which ultimately has nothing to do with the right to present a case, but rather with whether an individual needs to stay in detention during the process, a completely separate question.

Even if the administration’s proposal made sense, it does not have the Constitutional authority to alter the statute or our treaty obligations by presidential proclamation. DHS and DOJ point to §215(a) of the Immigration and Nationality Act (INA), which states that it is unlawful for any alien to enter the U.S. “except under such reasonable rules, regulation and orders and subject to such limitations and exceptions as the President may prescribe” and INA, which reads that the attorney eneral “may provide by regulation for any other condition or limitations on the consideration of an application for asylum not inconsistent with this chapter” (emphasis added). Neither of these provisions allows the executive branch to overturn our laws.

A presidential proclamation cannot supersede a statute. This proclamation is in direct violation of 8 U.S.C. §1158(a)(1), which reads that any immigrant “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.”

DHS and DOJ claim that they have the discretionary ability to deny asylum. This does not mean that the administration can take away the right to asylum for a whole class of people. Legal bars to asylum are and must be, written into the statute.

Even if the statute were not clear, the Supreme Court has found that “U.S. treaty obligations supersede statutory law." Murray v. The Charming Betsey, Article 31 of the United Nations Convention relating to the Status of Refugees, which we have incorporated by signing the 1967 Protocol, reads: 

…refugees should not be penalized for their illegal entry or stay… the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

The administration also tries to rely on the president’s admittedly somewhat broad authority to prohibit immigrants’ entry without permission, for however long he wants, if it is in the public’s interest, more specifically, if it is “detrimental to the interests of the United States.”

However, the administration has not claimed, much less shown, any detriment to the interests of the United States by considering asylum claims of individuals who cross the border without documents.

To the contrary, offering refuge to people fleeing persecution is a historically important American tradition. This is evidenced by the congressional intent behind the passing of the Refugee Act of 1980, which honored “one of the oldest themes in America’s history — welcoming homeless refugees to our shores,” and “gives statutory meaning to our national commitment to human rights and humanitarian concerns.”

The president’s authority is not so broad as to rewrite our statute and the treaties to which we are a party by executive fiat. The role of the executive in our democracy is to execute the law, not to make it anew. 

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.