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. 

What Does the New Democratic Majority in the House Mean for Immigration Reform

With Democrats winning a large number of seats to wrestle control of the House of Representatives away from Republicans, what will that mean for immigration reform?

Immigration reform was considered a “second term” issue for the Obama Administration, meaning that while President Obama saw the need for reform, he focused on issues that he saw as a greater priority in his first term, such as health care reform. When serious legislation addressing such topics as the millions of undocumented aliens already present in the United States, it fell victim to the Tea Party, a coalition of radical right-wing Republicans who gained power through gerrymandering, or the creation of congressional districts with strong conservative populations. The Tea Party flexed its muscle by forcing a government shut down over the funding of the Affordable Care Act, and thus discovered that it had the power to influence Republican House leaders to turn against immigration reform, branding any proposal other than enforcing the laws already on the books as amnesty. Hope for a legislative fix for the nation’s immigration problems died in President Obama’s second term. 

But President Obama did not allow legislative gridlock to hamper his desire to pursue immigration reform. Using solely executive action, President Obama reformed the nation’s deportation policy by ordering Immigration and Customs Enforcement (ICE) to prioritize deportation cases involving dangerous criminals. In a policy called “prosecutorial discretion,” the President had ICE agree to the administrative closure of those cases that were not in line with the new priorities. 

Similarly, by executive order, the President created a new program known as Deferred Action for Childhood Arrivals, or DACA.  Deferred action is merely a promise by the Executive Branch not to seek the deportation of an alien present in the country without legal authority. Through DACA, President Obama gave relief to undocumented aliens who were brought to the United States as children, who had a US high school diploma, were working on education or who joined the military, and who did not a significant criminal record. Using his legal authority pursuant to the Immigration and Nationality Act, he then granted those people who qualified for DACA the authority to work legally in the United States. 

The problem with pursuing immigration reform purely by executive action and without congressional action was that President Obama could not grant undocumented aliens a secure legal immigration status. Those who benefitted from prosecutorial discretion and DACA, therefore, were left vulnerable to a change in the presidential administration. 

That change came in 2016, when Republican Donald Trump won the presidency through an Electoral College victory over Democrat Hillary Clinton. Trump had run on a hard-line immigration approach of strict enforcement to be highlighted by building a wall along the southern border to be paid for by Mexico. 

Once in office, the stark contrast between President Obama’s view of immigration reform, and that of President Trump became evident. Emphasizing that even crossing the border without a visa was a criminal act, President Trump changed ICE’s enforcement priorities to include all aliens present in the country without legal authority. ICE began enforcement actions that heretofore had been unthinkable, such as immigration arrests being made in school parking lots, outside hypothermia shelters and in the halls of state courthouses where domestic abuse victims sought protection. 

Other executive action taken by the Trump Administration included the exclusion of aliens from certain countries deemed to be dangerous by the Administration from entering the United States, most of which were Muslim countries, instructing Immigration Judges not to resolve deportation cases through administrative closure, instructing Immigration Judges that in the Attorney General’s view victims of domestic abuse and gang violence did not qualify for the legal protection of asylum, and the rescission of DACA.  

Indeed, legislation proposals demonstrated that the Trump Administration’s definition of immigration reform was far more harsh than that of the Obama Administration. Gone was the idea that reform should provide benefit to those were in the country without authorization.  It was replaced with a drive to contract family based immigration, and to discourage immigration from places the President considered “shit-hole countries.”

The difference between Democratic and Republican priorities in reforming the nation’s immigration laws could not greater. 

President Trump created a crisis for foreign-born young people with his decision to rescind DACA. Although the courts have intervened, preventing the program from ending, DACA recipients find their legal status fragile and their future uncertain. He has insisted that a legislative fix was necessary. Meanwhile, he has bemoaned the efficacy of current immigration law, demonizing groups of Central Americans making the dangerous trek northward in the hopes of applying for asylum as potential gang members and terrorists. He has insisted that any legislative efforts to address the DACA crisis also include greater border security measures (such as the funding of the border wall), the curtailment of family based immigration, and the elimination of a program meant to create greater diversity in those who immigrate to the United States (that is, the annual diversity visa lottery).

Surely, with court action currently protecting DACA recipients, and the vast difference between the parties on immigration issues, it seems highly unlikely that the newly elected Democratic House majority will agree to the Trump Administration’s demands for harsher and more restrictive immigration reforms. Barring intervention on DACA by the Supreme Court, any hope for legislative action to be taken in the next two years on immigration reform would appear to be folly. That is, only if the Supreme Court were to accept a case involving DACA, and side with the President, would there be any pressure on the Democrats to find some common ground on immigration in order to protect a sympathetic group of law abiding young people. Even then, the price may be so high that the Democrats would prefer to have the issue front and center for the 2020 presidential election. 

This continued inaction on addressing the nation’s immigration problems may set-up the issue of immigration reform as an powerful issue going into the next round of federal elections.

By: William J. Kovatch, Jr.