President Donald Trump is using a fast-track regulation and a presidential announcement to modify the asylum rules which prevent the quick deportation of illegal border-crossers.
“Consistent with our immigration laws, the President has the broad authority to suspend or restrict the entry of aliens into the United States if he determines it to be in the national interest to do so,” said a Thursday statement by Secretary Kirstjen M. Nielsen, Acting Attorney General Matthew G. Whitaker. They continued:
Today’s rule applies this important principle to aliens who violate such a suspension or restriction regarding the southern border imposed by the President by invoking an express authority provided by Congress to restrict eligibility for asylum. 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.
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.”
The policy covers the migrants in the three caravans that are moving northwards, and all other migrants who cross the border illegally. Currently, most of the economic migrants who cross the border are allowed to file for asylum, which ensures their release into the U.S. job market for at least two years, pending a judge’s approval or rejection of their asylum claims.
The plan has two steps.
First, the president uses his legal authority to bar the entry of some groups of travelers into the United States. The likely group is migrants seeking jobs in the United States. This declaration provides border officials with additional legal authority for the second step.
Second, border officials will detain illegal migrants who cross the border between the official “ports of entry.” The caught migrants would be denied the right to file for full asylum even they claimed a “credible fear” of being sent home. These illegal migrants would be allowed a “withholding of removal” status which allows them to stay in the United States but does not put them on a track to green cards and citizenship. But officials would also be allowed to deport the illegal migrants under the fast-track “expedited removal” laws, so ensuring they are not released into the U.S. job market.
Economic migrants who use the ports of entry would still be allowed to file for full asylum, with the possibility of catch-and-release if they pass their credible-fear tests.
Many migrants apply for asylum, in part, because the application allows them to legally get U.S. jobs until a court denies their asylum request, usually after a delay of two years. According to an agency statement:
As of November 2, 2018, there were approximately 203,569 total [asylum] cases pending in the immigration courts that originated with a credible-fear referral—or 26% of the total backlog of 791,821 removal cases. Of that number, 136,554 involved nationals of Northern Triangle countries.
Senior administration officials said the plan does not deal with economic migrants who bring children to trigger the Flores catch-and-release loophole.
“We do not expect any one action to stall all of the myriad legions of flaws in our nation’s current immigration system,” an official told reporters. “We are looking at a number of possibilities and a number of [additional] legal options,” the official said.
But officials have drafted a regulation that would replace the Flores catch-and-release rule. The regulation would allow officials to keep migrants with children in tent cities, so ending the catch-and-release policies if Congress fully funds the tent cities. If catch-and-release is ended, the grants lose their ability to get jobs in the United States which they need to repay their smuggling debts.
However, Democrats and business-first Republicans have been loath to build legal or physical barriers to the movement of migrants into U.S. jobs, apartments and supermarkets.
The new policy is likely to be blocked by pro-migration judges. In turn, officials likely will ask for the Supreme Court to let the policy continue while courts argue over its legality.
The new 78-page regulation describes the policy:
SUMMARY: The Department of Justice and the Department of Homeland Security (“DOJ,” “DHS,” or, collectively, “the Departments”) are adopting an interim final rule governing asylum claims in the context of aliens who are subject to, but contravene, a suspension or limitation on entry into the United States through the southern border with Mexico that is imposed by a presidential proclamation or other presidential order (“a proclamation”) under section 212(f) or 215(a)(1) of the Immigration and Nationality Act (“INA”).
Pursuant to statutory authority, the Departments are amending their respective existing regulations to provide that aliens subject to such a proclamation concerning the southern border, but who contravene such a proclamation by entering the United States …
The interim rule, if applied to a proclamation suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligibility for asylum and thereby channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner.
This rule would apply only prospectively to a proclamation issued after the effective date of this rule. It would not apply to a proclamation that specifically includes an exception for aliens applying for asylum, nor would it apply to aliens subject to a waiver or exception provided by the proclamation.
… The regulations would ensure that aliens in this category who establish a reasonable fear of persecution or torture could seek withholding of removal under the INA or protection from removal under regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
The law allows the President to block the entry of people into the United States. An agency statement cited the relevant laws:
Section 212(f) of the Immigration and Nationality Act states plainly: “Whenever 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.”
Section 215(a) of the Immigration and Nationality Act similarly states: “Unless otherwise ordered by the President, it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”
The “interim final rule” regulation is available here.