The policy to limit asylum to people who cross at official ports of entry — teed up by a regulation published Thursday night — is Trump’s most legally dicey immigration move yet.
On Friday morning, the Trump administration is expected to take the most legally aggressive move it’s made on immigration yet — preventing people who cross the US-Mexico border without papers from getting asylum unless they go through a port of entry, or official border crossing.
Under US law, people who enter the US without papers are legally able to apply for asylum unless they are subject to specific restrictions. This policy would turn that on its head, by adding a restriction that would affect the majority of the 10,000 people a month — most of them Central Americans, and many of them children or families — currently turning themselves in to border agents in hopes of being protected from violence in their home countries.
It will force asylum seekers to choose between having to wait for weeks or longer at overloaded ports of entry — unless they’re prevented by smugglers from coming to a port at all — and risking near-immediate deportation by crossing illegally and turning themselves in to Border Patrol.
The administration has already laid all the groundwork.
The administration is issuing a new regulation that will go into effect immediately when it’s formally published in the Federal Register Friday — an unusually aggressive move that is almost certainly going to be challenged in court by immigration advocates.
Under the new regulation, people who are subject to a presidential immigration proclamation — like the Trump administration’s “travel bans” of 2017 (the last of which was upheld by the Supreme Court in a ruling in June 2018) — will be deemed ineligible for asylum.
Then on Friday, Trump is expected to sign just such a proclamation, suspending the entry of all people who cross the US-Mexico border between ports of entry — which is the way most people without papers (including most asylum seekers, children, and families) cross into the US.
People affected by the new policy will still be able to seek humanitarian protection. However, they will be subject to a much higher screening standard to stay in the US and pursue their cases (as opposed to being immediately deported) than asylum seekers currently are. Instead of being held to a standard that 75 percent of people currently pass, they’ll be held to one about 25 percent of people pass.
And even the people who pass that screening will only be eligible for lesser forms of legal status that don’t offer any opportunity to stay in the US permanently.
It’s still not officially clear just how broad the Friday ban will be. If it really is targeting all arrivals between ports of entry at the US-Mexico border, however, the two-part policy change will affect thousands of people currently on their way to the US. A large share of asylum seekers will go from having a very good chance of being able to stay in the US and work legally during the months or years it takes to pursue their asylum claim, to having a very good chance of being summarily deported a few days after their arrival.
What the new asylum policy will change
Here’s how it works right now: Someone who enters the US without papers — either at a port of entry or otherwise — is subject to immediate deportation without a court hearing, unless she says she wants to claim asylum or that she fears persecution in her home country. In those cases, she’s entitled to an interview with an asylum officer.
Generally, if the asylum officer determines that she has a “credible fear” of persecution (in other words, that there’s a significant possibility she’d be persecuted if deported based on her race, nationality, religion, political opinion, or membership in a particular social group), she is allowed to go before an immigration judge in the same court process that unauthorized immigrants arrested while living in the US are entitled to. There, she’s able to make her case for asylum. And in the meantime — since immigration court hearings take months or years — she’s legally able to work and live in the US.
Even if she is being persecuted, she might still be ineligible for asylum — if she has a certain criminal record in the US or her home country, for example. But the judge will wait until the end of the process to make that judgment. If she is ineligible for asylum but still has reason to fear persecution, she can receive a lesser form of protection — called withholding of removal — that allows her to stay in the US but gives her no path to permanent legal status.
Here’s how it would work under the new policy: Someone who enters the US without papers between ports of entry, from Mexico, will still be entitled to an interview with an asylum officer. But if she’s subject to a presidential bar, the asylum officer is required to say that she does not have a credible fear of removal. Instead, he’s supposed to screen her for a reasonable fear of removal — a standard that requires not just a significant possibility of persecution but a determination that persecution is more likely than not.
The “reasonable fear” standard is used only in rare cases under the status quo — for immigrants who’ve already been ordered deported and returned to the US, and immigrants who have committed serious crimes. But the difference in pass rates is striking. In credible fear interviews, about 75 percent of all asylum seekers pass. In reasonable fear interviews, a little more than 25 percent do. Even assuming that many asylum seekers who are currently subject to the credible fear standard would also pass the more stringent one, that’s still thousands of immigrants a month who would end up failing their screening interviews and being summarily deported.
People who do pass the reasonable fear screening would be allowed to go before an immigration judge, just like people who pass the credible fear screening are now. But they still wouldn’t be eligible for asylum — so their only options would be the protections that don’t give you any access to permanent legal status.
The Trump administration is coming closer than ever to using executive policy to override a law written by Congress
The Trump administration has a long track record of having its immigration policies put on hold (or struck down entirely) by federal judges. The first travel ban in January 2017; the family separation policy in June 2018; a host of setbacks on various fronts in its battle against sanctuary cities; its court-thwarted efforts to end the Deferred Action for Childhood Arrivals (DACA) program — at this point, it’s fair to say that litigation is expected whenever the administration makes a move.
But even for the Trump administration, this policy is a bold assertion of executive power to restrict immigration to the United States.
The text of the Immigration and Nationality Act specifies that people may apply for asylum “whether or not” they enter the US at a port of entry. The Trump administration is setting up to render that “or not” basically dead letter — at least as long as the expected proclamation is in effect.
The administration justifies this by saying that the law also gives the attorney general broad power to set restrictions on asylum, and the president broad power to suspend entry (an interpretation encouraged by the Supreme Court’s ruling in the travel ban case in June, which didn’t actually specify any limits on this power).
It’s the typical strategy on immigration under Trump: finding parts of the immigration system where the executive branch is given a lot of discretion, and use that discretion as aggressively as possible.
But this comes darn close to using executive discretion to override a specific thing that Congress wrote into the law.
It is near-certain that the policy will be subject to a lawsuit as soon as the ink is dry on the proclamation Friday. It’s possible that a court ruling against the administration could come even before the ban goes into effect — or that it comes just a few days after.
The Trump administration, according to Julia Edwards Ainsley of NBC, thinks it’s going to prevail with the newly ensconced conservative majority on the Supreme Court. It might be right. But it’s going to be a closer call, on the law, than the travel ban was. It’s the riskiest fight, legally speaking, the administration has picked yet.