Trump's Border Lawlessness

His anti-asylum proclamation is illegal and an abuse of his executive powers.


President Trump's last-minute fear-mongering campaign against the Central American migrant caravan may have fired up his base, but it failed to win

Border Babies

swing voters. And his despicable ad depicting these helpless people fleeing violence in their own countries as an invading horde full of "cop killers" badly backfired. Republicans who embraced this message fared poorly at the polls.

But instead of backing off, the president is doubling down on his plan to gut the nation's asylum laws. This is almost certainly a lawless and unprecedented use of his executive powers. Nonetheless, he has just issued a presidential proclamation that will pretty much suspend America's asylum program as we know it.

The 1965 Immigration and Nationality Act allowed anyone — regardless of whether they entered the country legally or illegally — to request asylum upon arrival. But as part of the administration's "zero tolerance" policy," over the summer it started slapping asylum seekers found entering between ports of entry rather than actual ports as required with criminal charges. However, that did not affect their asylum petition. They could be fined or punished for trying to enter the country illegally. But if they could convince border agents that they had a "credible fear" of persecution in their home countries, they were still entitled to a hearing by a judge who would make the final call on whether they could stay.

But Trump apparently wasn't content with simply criminalizing asylum seekers for minor transgressions. He wants to turn them away by any means necessary.

The president is pretending that the approaching caravan is some kind of national emergency that gives him the power to issue a proclamation — effective immediately without going through the usual notice and comment period that normal regulations require — that'll basically bar anyone found trying to enter between ports from even applying for asylum, much like criminals and terrorists are currently barred. Instead, they would be put in "withholding" proceedings where they could petition to stay in America temporarily but, unlike asylum seekers, wouldn't be able to obtain green cards. And to even get this mercy, they would have to meet a higher bar and prove a "reasonable" (not just a "credible") fear of persecution or violence in their native countries.

All of this is an elaborate ruse to subvert existing laws and strip asylum seekers of the rights and privileges that a duly elected Congress extended to them. And the notion that asylum seekers are flocking to the United States in such overwhelming numbers that they represent a national emergency justifying a presidential proclamation is total BS that should trouble all "rule of law" conservatives.

Trump has hyped the 7,000-strong caravan. But if past experience is any indication, a very small fraction of these people will actually even reach the U.S. border. Indeed, Mexico has already offered asylum to some 2,000 and many more are simply quitting because the long journey is too difficult for kids and families. There is no stampede at the southwestern border justifying an emergency proclamation, without going through proper rule-making procedures. The National Immigration Forum's Zuzana Cepla notes that the number of apprehensions at the southwest border are close to a 22-year low. Yet none of Trump's predecessors thought it fit to declared a national emergency or deploy the military at the border, as Trump has done.

More to the point, these people have formed a caravan not to storm the United States but to avoid being harassed by drug cartels looking for mules and human coyotes.

But why do these asylum seekers sometimes attempt to enter between ports of entry? Because U.S. Customs and Border Protection has taken to deliberately turning them away at authorized ports, telling them to return later, citing alleged capacity limits. This leaves these people, already past the point of exhaustion, in limbo with nowhere to go for days and weeks. Human rights groups are challenging this practice, known as "metering," in federal court. But given its widespread use by this administration, is there any surprise that people who are fighting for their life try and find alternative ways of admission? Trump is trying to portray these people as border jumpers and law-breakers trying to sneak past border patrol. In truth, they often just go and park themselves at some spot on the border where agents are bound to find them so that they can surrender and request asylum more expeditiously.

Trump's proclamation goes even further than the travel ban, which didn't straight up bar people in the listed countries from applying for asylum. That's because American law has always recognized the special need to offer asylum to those fleeing oppression and persecution. That Trump doesn't care about immigrants is one thing. But that he doesn't care about the law he swore to uphold is quite another.

He is the true menace to the rule of law in America.

A version of this column originally appeared in The Week