Matthew Whitaker’s tenure as acting attorney general may only be able to be measured in hours, but he’s already made a huge impact in how asylum-seekers are processed at the southern border. According to a new interim final rule from the Departments of Justice and Homeland Security, those who enter the country illegally and are captured will no longer be able to claim asylum and will instead be returned to their country of origin on an expedited basis.
“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,” Whitaker said in a joint statement with DHS Secretary Kirstjen Nielsen.
“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.”
Translating that out of federalese, this is basically saying that those who cross into America illegally and then are captured cannot claim asylum as pursuant to the Immigration and Nationality Act — the same act that the president used to craft the travel ban, which was ultimately upheld by the Supreme Court.
That law holds that “(w)henever 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.”
The only way to gain political asylum, therefore, is to present oneself at a port of entry to the United States.
The New York Times crystalized the arguments for and against the move in their article on the new rule.
“Lawyers for immigration advocacy organizations said they violated a founding principle of federal asylum: to judge each person’s asylum claim on its own merits. And the lawyers said federal and international law made it clear that the United States must provide immigrants the opportunity to claim asylum regardless of whether they entered the country legally or illegally,” the Thursday article read.
“Trump administration officials defended the new approach, saying the president is responding to statistics that show that most migrants who seek asylum are eventually denied — but not before many of them skip their court hearings and choose to illegally stay in the United States.”
That last part is generally true. Few asylum seekers are able to establish a credible fear based on political persecution in their home country, which is why their application is typically denied. If they do have a realistic claim, presenting themselves at a port of entry is the proper way of doing things.
As for the legality of that, Bill Hing, general counsel at the Immigrant Legal Resource Center, told Newsweek that, “U.S. and international law does not specify that you have to go to a certain port.”
Whether or not this stands is going to be a matter of considerable debate. Whether it specifies you have to go to a certain port or not, under American law, seems again like it would be subject to the Immigration and Nationality Act — although that will certainly be a matter for the courts.
As for international law, that and $35 will usually get you an oil change. While there are obviously certain international legal norms everyone is expected to follow, the unsecured southern border represents an especial challenge to the United States. The abuse of the asylum process by individuals who have chosen to brake the law to get into the country in the first place, thus placing a strain on a system that already struggles to deal with legitimate asylum claims, should be an overriding concern in this case.
The Trump administration has also said those illegally in the country could apply for two other smaller programs as opposed to asylum, which would technically satisfy our treaty obligations. Whether treaty signatories buy this, and whether it ends up meaning anything, again remains to be seen.
No matter how this shakes out, it’s a sign that Whitaker is putting his stamp on the office posthaste — even if one gets the idea that President Trump had more than a little to do with the formulation of this policy. Say what you will about that, but Sessions certainly wasn’t willing to take this step.
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