The President Cannot Act Inconsistently with the Asylum Law as Written and Passed by Congress

US District Court Judge Jon S. Tiger issued a nationwide injunction preventing the Trump Administration from implementing a Presidential Proclamation wherein the President attempted to bar aliens who enter the United States through Mexico at a point other than an official port of entry from applying for asylum. “Whatever the scope of the President's authority,” the Judge expressed, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." Specifically, through the Proclamation, Trump directly contradicted the plain language of section 208(a)(1) of the Immigration and Nationality Act, which states, “Any alien 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 in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

In response, the Departments of Justice and Homeland Security issued a joint statement, arguing that the Supreme Court had ruled over the summer that the President had the authority to suspend entries of a class of aliens when the President finds that to be in the national interest. Moreover, asylum is a discretionary form of relief, and not an entitlement even if all of the legal requirements are met. 

The Departments of Justice and Homeland Security are being misleading.  It is true that the Supreme Court upheld President Trump’s travel ban finding that the President has broad discretion outside of the borders of the United States to suspend a class of aliens from entering the United States if the President finds it is in the national interest. This was done in the context of an Executive Order wherein the President found that certain countries did not provide sufficient information about their nationals to permit the United States to vet those individuals properly before allowing admission. Nationals from such countries were thus temporarily banned from entering the United States.  That is, the President took action that applied outside the United States, or at a port of entry before an individual became subject to US jurisdiction, to prevent that individual from physically and legally stepping foot on US soil. 

The situation is different with respect to those who enter the United States by crossing the border surreptitiously between official ports of entry. While theoretically, under the Supreme Court’s precedent, the President could suspend the legal entry of Hondurans or other Central Americans, that only prevents an individual from being admitted through of a port of entry after being inspected by a Customs and Border Patrol agent. For a person who is actually on US soil, whether that happened legally or illegally, the protections of the US Constitution and US law apply. At that point, the President’s power is far more restrained.  He cannot then act in direct contravention of a law passed by Congress. Put simply, outside the territory of the United States the President has broad discretion on immigration matters, but inside the United States he does not. 

With respect to the grant of asylum itself, it is true that section 208(b)(1)(A) does state that the Attorney General or Secretary of Homeland Security “may grant asylum” to an individual meeting the legal requirements. The use of the word “may” does make the grant of asylum discretionary. But what exactly does discretionary mean?  For one, the decision cannot be arbitrary and capricious. There has to be reason behind the decision. Discretion involves evaluating all of the facts and circumstances of a case, and fashioning a reasonable outcome. 

Thus, it is possible for an applicant to be denied asylum for breaking the law. But the fact that a person may have broken the law must be weighed against the level and severity of danger from which the applicant was attempting to escape. 

Discretion does not mean applying a blanket rule to all situations. Applying a rule that no one who enters the United States illegally, without weighing all of the circumstances in that person’s case, is an abuse of discretion. It leaves no choice to the decision-maker to craft a reasonable outcome. 

Moreover, the law provides a list of factors that disqualify a person from receiving asylum. These factors range from a conviction of a particularly serious offense to the individual being a danger to the security of the United States. In addition, the Attorney General may impose further restrictions by regulation. But, those limitations must be consistent with the law. Thus, an argument exists that a regulation cannot impose a limitation that is inconsistent with the statute as written, such as prohibiting a person who has entered the country illegally from applying for asylum. 

The President has been consistently attempting to broaden his authority over immigration matters. This stems from his frustration over members of his own party, who have controlled both houses of Congress since the beginning of his term, to pass immigration reform satisfactory to the President. With the Democrats ready to assume power in the House of Representatives, gridlock over immigration is likely to increase. This will only create more incentive for the President to attempt to grab more power through purely executive action. The courts will therefore remain a key institution to limit the President and uphold the doctrine of Separation of Powers. 

By: William J. Kovatch, Jr.