Trump’s “Remain in Mexico” Plan is Bad Policy Lacking Legal Authority

Confusion reigned over the weekend, as the Trump Administration announced it had reached a deal with the incoming Mexican Government concerning asylum seekers, only to have the incoming Mexican Government deny it. Under the alleged deal, labeled “Remain in Mexico,” Trump claimed that potential refugees from Central America could apply for asylum in the United States at ports of entry, but would remain Mexico until a final decision had been reached on the asylum application. 

Critics of the alleged deal claimed that it would leave the potential refugees in danger, as the Mexican border states are dominated by the Mexican cartels. The incoming Mexican Government noted that it was reluctant to permit Mexican territory to become a holding grounds for people seeking admission to the United States. 

Whatever the merits of the proposed plan, the question remains whether it is even legal under US law. Reading the US Immigration and Nationality Act as it pertains to asylum applications shows that it isn’t. 

Section 208 of the Act permits an individual to apply for asylum upon arrival to the United States. When an individual expresses an intent to apply for asylum, or a fear of persecution, Section 235(b)(1)(A)(ii) requires  immigration officials to refer the individual to an Asylum Officer for a credible fear interview. Pursuant to section 235(b)(1)(B)(ii), if the Asylum Officer determines that the individual does have a credible fear of persecution, that individual must them be detained by the US Government, for further consideration of the asylum application. Section 236(a) then gives the US Government the option to continue detention, or to release the individual, either on bond or under conditional parole.

Although Section 235(b)(2)(C) permits the Government to return a person arriving by land from a country contiguous to the United States back to that country pending removal proceedings, the language of the statute exempts aliens who are eligible for expedited removal from this provision. An alien without documentation or who attempts to enter based on fraud is eligible to be removed by an immigration official without placing that alien in formal removal proceedings. That is expedited removal. Almost all of the aliens arriving at the U.S.-Mexico border from Central America will be eligible for expedited removal.

This, pursuant to the statute, Congress only gave the Executive Branch two choices when it comes to a person applying for asylum at a port of entry. If the person passes the credible fear interview, the US Government can either detain that person, or release that person into the United States. There is no provision under US law to permit the Government to ship an asylum applicant off to another country while the United States considers the asylum application. Put simply, if a person shows up at a port along the Mexican border and claims fear, the United States cannot force that person to remain in Mexico until the asylum application reaches its conclusion. 

“Remain in Mexico” lacks legal authority. Moreover, it represents an attempt to push off on Mexico the responsibility of hosting Central American asylum seekers looking for protection in the United States. It is bad policy risking a deterioration of US relations with its southern neighbor. 

By: William J. Kovatch, Jr. 

What Could Happen Now That Migrants from the Latest Caravan are Arriving at the US-Mexico Border?

Some buses with potential refugees from Honduras arrived at the US-Mexican border on Tuesday. This marked the beginning of those from the now infamous caravan to arrive at the border. 

The question that arises now is what will happen to these migrants.

Many of the migrants will be claiming asylum. Asylum would permit the migrants to stay in the United States legally, with the possibility of applying for permanent residency and later citizenship. It is granted to people who show a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group. Many Central Americans are attempting to escape gang violence. Some are afraid of the new Honduran Government. Some women may be seeking protection from abusive domestic partners. 

Asylum is a legal immigration benefit. By law anyone present in the United States may apply for asylum, regardless of whether that person entered legally, or what that person’s immigration status is. 

For people making the dangerous trek northward, through Central America and Mexico to the United States, the Trump Administration wants them to apply for asylum in an orderly fashion, at legal ports of entry. Yet, the Administration has limited access to asylum procedures at ports of entry, reportedly to 100 applicants per port per day. With thousands of potential refugees already waiting in line to start the asylum application process, this could mean a wait of months or longer for those who just arrive at the Mexican side of the border. 

The alternative has been for Central American migrants to cross the border between ports of entry, surrender to an agent from Customs and Border Protection (CBP), and claim that they have a fear of returning to their home country. 

Once a person within the United States makes a claim of fear, CBP is supposed to stop the expedited removal process, and turn the migrants over to Immigration and Customs Enforcement (ICE) for detention and a credible fear interview. At a credible fear interview, an Asylum Officer will interview the migrant to test whether he or she has a credible claim for asylum. 

The Asylum Officer will also consider whether the person qualifies for two other humanitarian relief programs, called withholding of removal and protection pursuant to the Convention Against Torture (CAT). Both programs address aliens who believe their life and liberty may be in jeopardy if they were to return to their home country. Both programs have more stringent burdens of proof than asylum. Neither program leads to permanent residency or citizenship. But both permit the alien to remain in the United States if that alien qualifies. 

If it is determined that an alien does not qualify for asylum, which could be because of prior removals, criminal convictions, US security issues, or failing to apply for asylum within one year of entering the United States, but that alien still claims fear of returning to his or her home country, the Asylum Officer will conduct a reasonable fear interview instead of a credible fear interview. In a reasonable fear interview, the alien will only be considered for withholding of removal and protection pursuant to CAT.

If the Asylum Officer finds in favor of the alien in either a credible fear or reasonable fear interview, that alien will be referred to an Immigration Court to make their case. If the Asylum Officer does not decide in favor of the alien, the alien may request that an Immigration Judge review that decision. That review typically happens in an expedited fashion. 

There is a backlog of thousands of cases in the Immigration Courts. This means that it can take years for a case to be heard by an Immigration Judge. Keeping an alien detained while waiting for a hearing can be costly for the US Government. Often, a person with a favorable credible or reasonable fear interview result is released into the United States upon the posting of a bond. Failure to show up to Immigration Court results in a loss of the bond and an order of removal in absentia. This is what the Trump Administration calls “Catch and Release.”

Trump issued a Proclamation pursuant to newly released regulations that purports to disqualify any alien from applying for asylum if that person entered the United States from Mexico between legal ports of entry on or after November 9, 2018. The ACLU has challenged the regulations and the Proclamation as violating the plain language of the Immigration and Nationality Act, and for violating the Administrative Procedure Act, which sets the rules for how new regulations may be adopted. 

The Trump Administration’s hope was for the Proclamation to compel migrants from the latest caravan to wait at ports of entry, and not cross the border illegally. However, aliens who enter the United States after November 9th, and who express fear, are still entitled to a reasonable fear interview to be considered for withholding of removal and protection pursuant to CAT.  Regardless of the President’s Proclamation, if the alien goes before a judge, he or she can still argue that the Executive Branch cannot contradict the words of the statute. Therefore, the Proclamation and regulations are void, and the alien may still apply for asylum pursuant to section 208(a)(1) of the Immigration and Nationality Act despite entering illegally and not having a currently valid immigration status. 

By: William J. Kovatch, Jr. 

Trump Administration Adopts Asylum Regulation Directly Contrary to the Plain Language of the Statute

The Trump Administration has shown once again its disdain for the legal process of immigration, issuing a regulation directly contrary to the plain language of the Immigration and Nationality Act (INA). 

The specific issue concerns asylum. Asylum is legal protection granted by a country to people who have a reasonable fear of persecution in their home country based on race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum has the legal right to remain the United States, work and obtain a travel document. After one year, an asylee may apply for lawful permanent residence, which can lead to citizenship. 

The Department of Justice issued an interim final rule prohibiting anyone who enters the United States through the southern border with Mexico at anywhere other than an official port of entry from applying for asylum, effective after the President has made a Proclamation to that effect. Put simply, once the President issues his Proclamation, migrants who do not hold a visa must enter through an official port of entry in order to apply for asylum if they cross over from Mexico. Any alien who sneaks across the border will be barred from applying for asylum. 

But this contradicts the statute. The process of applying for asylum is governed by section 208 of the INA.  Section 208(a)(1) 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).

The law, as passed by Congress, therefore guarantees the right to apply for asylum to any alien present in the United States, regardless of how that alien entered or what that alien’s legal immigration status is. That is, an alien who entered the United States by crossing the border without a legally valid visa, and at a place other than an official port of entry, may by law apply for asylum even if that alien has no legal immigration status in the United States.

The US law wherein Congress passed this provision was the Refugee Act of 1978. Through this law, Congress implemented US international obligations stemming from the Universal Declaration of Human Rights and the Protocol Relating to the Status of Refugees. The Protocol, in particular, prohibits a country from imposing a penalty on a refugee because that refugee either entered the country illegally or is present in the country illegally. 

A regulation is a rule issued by the Executive Branch implementing a statute passed by Congress. Regulations may interpret ambiguous language in a statute, or adopt policies pursuant to a statute where Congress has authorized the Executive Branch to adopt such policies. A regulation cannot contradict the plain language of the statute. 

In this instance, then, where Congress expressly provided that an alien present in the United States May apply for asylum regardless of whether that alien is present illegally or crossed the border illegally, a regulation cannot restrict the ability of aliens to apply for asylum only if they come through an official port of entry. With the regulation being directly contrary to the plain language of section 208(a)(1) of the INA, the Administration has no legal authority to adopt it. In the end, this restriction on the availability of asylum cannot withstand legal scrutiny. 

By:  William J. Kovatch, Jr.