Immigration law

The Case that Started All the Fuss

Judge Tigar's (ND CA) asylum decision is an especially inappropriate target for Trump's ranting, given the weakness of the Administration's position on the legal issues raised by the case.

|The Volokh Conspiracy |

Given the furor sparked by President Trump's disgraceful "Obama judges" tweet, and Justice Roberts' extraordinary (and most welcome) stern rebuke [see here], it is easy to lose sight of the legal issues involved in the case, and in the opinion by Judge Tigar [available here] that so enraged the President.

It's actually not all that complicated. On November 9, the President issued a Presidential Proclamation [available here], and DHS announced a series of new rules, that had the combined effect of making "any alien who enters the United States across the southern border" categorically ineligible to bring a claim for asylum, unless they entered the country at a "port of entry"—i.e., a US Border and Customs Patrol-operated facility—on the US-Mexico border.

The Immigration and Naturalization Act provides:

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 [the procedures set forth elsewhere]." 28 U.S.C. § 1158(a) (emphasis added)

That's pretty much it. You be the judge. I'm no expert in Immigration law, and I suspect you're not either. But it doesn't look that complex. Congress has clearly said, in the statute, that "any alien" arriving at the border is eligible to apply for asylum, whether or not he/she enters at a "point of entry." The Executive Branch has declared that for certain aliens—those entering across the US-Mexico border—that will no longer be the case.

This what Trump is so outraged about? This is Separation of Powers 101. Congress (with, of course, Presidential approval) makes immigration law; the President is charged with "faithfully executing" that law. Here, he has overriden an express Congressional directive regarding the eligibility of aliens for asylum. He can't do that, on his own.

It's beyond ironic that Trump has chosen this case for a rant about how badly he is treated by all those "Obama judges" there on (or in) the 9th Circuit. He loses this case before a "Bush judge" or a "Trump judge" or a "Reagan judge"—i.e., before any judge who takes the Constitution at all seriously. Trump doesn't much like the Separation of Powers, I get that—and he's surely going to be liking it a lot less now that the Democrats control the House. But he better learn to live with it, for all of our sakes.

NEXT: Thomas Sowell Returns

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  1. “he’s surely going to be liking it a lot less now that the Democrats control the House”

    That’s the best thing that happened to his re-election campaign. Ask Clinton and Obama how much partisan investigations by a hostile House hurt them.

    1. Clinton and especially Obama had most of the media as allies. Trump has almost all of them as enemies. That’s a bit of a difference.

      1. ” Trump has almost all of them as enemies.”

        That’s his fault.
        They gave him ENORMOUS amounts of free publicity during the run-up and into the election.

        Then they confronted him with facts. He does not like to be confronted with facts.

        1. Yeah, they gave him an enormous number of free attacks.

          1. “Yeah, they gave him an enormous number of free attacks.”

            Yeah, they did.
            They repeated all his attacks on his opponents, in case anyone missed them.

        2. They’re still giving him enormous amounts of free publicity.

      2. IDK, Fox has the largest share of viewers of the 3 major cable networks. And Fox has Hannity who is literally a Trump campaign surrogate. And can you name any anti Trump radio talk show hosts? I can’t.

        Not event getting into whether the “media” as you describe them are anti trump or just pro fact.

        1. “Not event getting into whether the “media” as you describe them are anti trump or just pro fact.”

          This sentence contains the word “or”, but the two things listed are the same exact thing.

        2. Sirius XM Progress channel if full of radio talk show hosts that are anti-Trump, many of them along with others are on the AM & FM airwaves too. Although Progressives have tried many times, they don’t pick up the audience numbers required to sustain a program on talk radio. The majority of MSM both TV and print are located in major cities, which have been controlled by Progressives for decades, basically a captive audience therefore they rarely print anything negative about Progressives.

          I do find it funny that people whine about one cable network and talk radio while controlling the major networks and print media. IMHO Progressives can’t stand that they can’t control the narrative therefore continually attempt to demonize the opposition.

    2. ” Ask Clinton and Obama how much partisan investigations by a hostile House hurt them.”

      OK. Which of them successfully got succeeded by another member of their party?

      1. Looks like the Clintons are going to have to weather another investigation as the House is going to look into whether the Clinton Foundation was a Pay-to-Play vehicle to cash in on Hillary’s political career. As I postulated during the campaign we’d find out if the Clinton foundation was really a first class charitable organization or a corrupt enterprise by what would happen to its level of donations if she lost. It turns out everyone wasn’t donating because Hillary “is the kindest, bravest, warmest, most wonderful human being” we’ve ever known in our lives. The contributions in 2017 dropped to 10% of what they averaged when she was secretary of State and the odds on favorite to be the next President.

        1. I promise to give the same weight to Democrats investigating Hillary as I gave to Republicans investigating Trump. Who’s going to be the new Devin Nunes? Will he (or she) rush to the White House to brief them on what the White House just told him (or her)?

      2. “OK. Which of them successfully got succeeded by another member of their party?”

        Neither. But Trump still has a possible second term.

        Since FDR/Truman, 3 straight wins for one party has only happened once.

  2. Yes, yes, David, we know: Trump bad. Now finish your dinner.

    1. Well, in this case, Trump fairly obviously wrong. Does that make him bad?

      1. Senate Minority Leader agrees with Trump:

        “I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political on Citizens United, Janus, and Shelby.

        But I am thankful today that he?almost alone among Republicans?stood up to President Trump and for an independent judiciary.”

        1. Yeah, kind of ironic he “agrees” with Roberts about objecting to identifying judges as Republican and Democratic, and then in the very next sentence identifies Roberts as a Republican…

          But you can get away with that sort of irony if you’ve got the media on your side, and Schumer does have it in his corner.

          1. I don’t see how that’s irony. He’s saying that he agrees that judges shouldn’t be viewed as beholden to their parties or the official who appointed them and simultaneously praising him as one of the few Republicans who is saying that Trump’s statement is unwarranted, i.e. isn’t beholden to Trump. It wouldn’t be impressive to partisans in any way if it were a Democrat saying that.

            1. Republicans like to be identified as Republicans first, and anything else second. Roberts, apparently, would prefer to be known as a judge first, and a Republican second. Therefore, Roberts isn’t a Republican. QED.

            2. You just glossed over the part where he’s slamming Roberts for his “highly political” “partisan” decisions?

              Sounds like Schumer thinks the decisions were made by bad “Bush” judges, not good Clinton or Obama judges.

      2. I don’t think he’s obviously wrong; In his proclamation he cites on point precedents in his favor, and I’ve cited below language from the very statute Post is relying on that would appear to give Trump a basis for his action if the Attorney General is in agreement with him.

        Further, he’s acting here in a President’s firmest area of autonomy, national defense.

        Basically, I think he’s going to win this one, and handily, even though he’ll probably first have to deal with some judge in the 9th circuit ruling against him.

        1. He says he wants to protect the system for “legitimate asylum seekers” by categorically denying them asylum.

          He’s not going to win this one, unless he somehow managed to nominate 3 or 4 more justices by the time it comes up for argument… and probably not even then.

          1. No, the point you’re missing is that nobody in the caravan is a “legitimate asylum seeker” at this point. They’ve been offered asylum by Mexico, they’ve traveled across two safe countries to enter the US.

            Even if they were legitimately refugees when they illegally entered Guatemala, which I suspect wasn’t true of many of them, at this point they’re just “migrants” who’ve been coached to make an asylum claim if they’re caught illegally entering the country.

            1. They’ve been offered asylum by Mexico,…

              This is just false.

              …they’ve traveled across two safe countries to enter the US….

              While perhaps contingently true, this doesn’t bear on their status.

              Even if they were legitimately refugees when they illegally entered Guatemala, which I suspect wasn’t true of many of them, at this point they’re just “migrants” who’ve been coached to make an asylum claim if they’re caught illegally entering the country.

              Hm. I’m sure, then, that I won’t find you over on Reason’s article describing urban recipients of Trump’s agricultural payoffs, claiming that such recipients are just playing by the rules of the system, which they’re entitled to do.

              I think we can straightforwardly acknowledge that migrants that know their rights and the intricacies of our system are harder to deal with than completely ignorant migrants that are subject to the whims of an administrative judge. Why that means their claims are presumptively illegitimate, I don’t know.

              1. “This is just false”

                Oh, really?

                “While perhaps contingently true, this doesn’t bear on their status.”

                Actually, it does, per the “first country of asylum” principle. Which, while honored in the breach, is still valid. If you’re a refugee, you don’t get to shop for refuge. You apply in the first safe country you reach.

                And after you fail to do that, you’re just a migrant.

                1. Oh, really?

                  Yes. The story you’ve linked doesn’t demonstrate the assertion you’ve made.

                  Actually, it does, per the “first country of asylum” principle.

                  Which is just some principle you’ve pulled out of your ass, likely based on the European example, itself the product of a multilateral, European agreement.

                  1. …and even in Europe the first country of asylum principle doesn’t allow you to prevent people from entering in the first place, as the Bavarian government discovered recently.

                  2. “11. According to this use of the concept, asylum-seekers/refugees may be returned to countries where they have, or could have, sought asylum and where their safety would not be jeopardized, whether in that country or through return there from to the country of origin.”

                    UN Refugee Agency

                2. “Actually, it does, per the “first country of asylum” principle.”

                  Which only matters for their US asylum status if it was explicitly implemented by congress in US asylum law. Please cite the appropriate section of the US Federal Code where this is done.

            2. “No, the point you’re missing is that nobody in the caravan is a “legitimate asylum seeker” at this point”

              No, the point you’re missing is that nobody knows who is entitled to asylum until their request for asylum is made, and they’re given a hearing.

              “They’ve been offered asylum by Mexico,”

              How odd, then, that the President cites the fact that most entered Mexico illegally, some with violence, as part of the reason for his choice of action.

              1. You wouldn’t accept that as a reason to deny them asylum here, why cite it to deny they were offered asylum there?

                1. Oh, now I see. You’re arguing that since Mexico offered them asylum and they entered illegally, they should get asylum here because they entered illegally?

                  1. No, I’m pointing out that they were offered the opportunity to apply for asylum in Mexico, and turned it down.

                    Which is not the behavior of actual refugees, but is how economic migrants, holding out for a better deal, act.

                    They’re not refugees. We don’t need to pretend they are.

                    1. “No, I’m pointing out that they were offered the opportunity to apply for asylum in Mexico, and turned it down.”

                      That sounds like the sort of claim you’d make at an asylum hearing, if you could prove it.

                    2. Yes, and the problem we face is that almost nobody actually shows up for an asylum hearing unless held in custody until it takes place. Because they’re almost all just illegal immigrants who have been warned to apply for asylum if caught. Applying for asylum is just a fallback plan.

                      We get very few real refugees here in America, because we’re not next to any country that produces refugees in significant numbers.

                    3. “the problem we face is that almost nobody actually shows up for an asylum hearing unless held in custody until it takes place.”

                      How is that a problem for people who are being held in custody?

                      “Because they’re almost all just illegal immigrants who have been warned to apply for asylum if caught.”
                      OK. So then they’ll almost all be denied asylum, and deported.

                      Guess what? Most people accused of crimes claim to be innocent. This doesn’t mean we can dispense with trials for people who claim they’re innocent.

                      “We get very few real refugees here in America, because we’re not next to any country that produces refugees in significant numbers.”

                      Ships and airplanes make us close to EVERY region that produces refugees in significant numbers.

                    4. “Ships and airplanes make us close to EVERY region that produces refugees in significant numbers.”

                      Perhaps so, but I’m not sure how this applies to a group of people who walked here from Honduras…

                    5. “Perhaps so, but I’m not sure how this applies to a group of people who walked here from Honduras…”

                      The Presidential order doesn’t limit anything to “people who walked here from Honduras”.

            3. Perhaps asylum, if granted, should put the individual (and any immediate family also granted asylum) into a pool to be assigned to a country – so perhaps some of these asylum seekers might end up being assigned to Mexico, some to Iceland, and some to Greece.

              If the real reason for asylum is to escape persecution, why should they get to pick the country that they are granted asylum in? Obviously once they are in their assigned country, they could apply for immigration to whatever country they want — just like everyone else in the world. This would of course require some international agreement and coordination but would have the advantage of increasing diversity in the world (I’ve been assured that’s a very good thing) and reduce the tendency of some such immigrants to end up in large ethnic ghettos.

              1. “Perhaps asylum, if granted, should put the individual (and any immediate family also granted asylum) into a pool to be assigned to a country – so perhaps some of these asylum seekers might end up being assigned to Mexico, some to Iceland, and some to Greece.”

                You’re going to let someone in Iceland decide that someone gets asylum in the United States?

        2. “In his proclamation he cites on point precedents in his favor”

          Yeah, except for no, he didn’t. He cited precedents that allow him to deny entry to asylum-seekers, which isn’t disputed. What IS disputed is his authority to categorically deny asylum requests made from inside the country.

          From what I see, the problem comes from an issue that’s a little bit before my time… the desire to give Cuban refugees from Castro special status with regard to legal residency in the U.S. If they were intercepted at sea, they were returned to Cuba but if they put two feet on U.S. soil, they were allowed to apply for asylum (and got it).

  3. The very next paragraph, however, states:

    “(2) Exceptions

    (A) Safe third country

    Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.”

    This would appear to me to be easily applicable to any alien appearing at a US port of entry on our border with Mexico, as Mexico would be such a safe third country, and has already offered asylum. Except for Mexicans applying for asylum in the US, of course, but the caravans originated in, I believe, Honduras.

    I do salute your willingness to link to the actual text of the proclamation, in as much as it directly cites precedent contrary to your own position.

    1. Wrong, once again, and as usual.

      First of all, there’s no way to read this exception as narrowly providing the president unilateral authority to disregard paragraph (1)’s general provision that asylum claims may made outside of “ports of entry.” Second, the exception is not even applicable absent a “bilateral or multilateral agreement” with a “safe third country,” which does not yet exist in this case – as the proclamation itself acknowledges. Third, the “contrary precedent” you refer to does not even purport to interpret the relevant provisions of the INA applicable here and is so laughably off-base I cringe for the Trump administration attorney forced to cite it.

      You are clearly unqualified to comment on any kind of legal question or analysis.

      1. You may just want to revisit that judgement after the Supreme court chimes in…

        First of all, I said nothing about providing the President with “unilateral” authority; The clause clearly assigns the decision to the Attorney General, and the proclamation cites the AG’s agreement.

        Second, we DO have a multilateral agreement with Mexico on the topic of asylum claims. the “Protocol Relating to the Status of Refugees”

        Now, per the prohibition on “non-refoulment”, we can’t dump the caravan members back in Honduras. But Mexico and Guatemala, both signatories? No problemo. Particularly since Mexico already offered them asylum.

        Again, once you’ve reached a safe country, and have been offered asylum, you are in your subsquent travels merely a “migrant”, not a refugee. There are no refugees in the caravan at this point.

        1. First of all, I said nothing about providing the President with “unilateral” authority; The clause clearly assigns the decision to the Attorney General, and the proclamation cites the AG’s agreement.

          You are citing the exception as authorizing the president to ignore statutory provisions imposed by Congress. The fact that the AG (a presidential subordinate) must sign off in order to employ the exception does not change the unilaterality of the assertion of power.

          Second, we DO have a multilateral agreement with Mexico on the topic of asylum claims. the “Protocol Relating to the Status of Refugees”

          Again, not even the presidential proclamation itself asserts that the Protocol satisfies the conditions of the exception you’ve cited. The mere existence of the Protocol is not enough; and a review of its substantive provisions helps to demonstrate why. Do your goddamn homework – and not just enough to support your pre-conceived beliefs.

          Again, once you’ve reached a safe country, and have been offered asylum, you are in your subsquent travels merely a “migrant”, not a refugee. There are no refugees in the caravan at this point.

          Which would not be a claim anyone who has read the Protocol would assert.

          1. The exception is an explicit clause of the statute.

            1. It is an exception that provides that, when there exists an agreement with a “safe third country” where (per the AG’s determination) a migrant would not be subject to the persecution they would be subject to in their home country, such a migrant would not be entitled to the “asylum” claim provided for in the first paragraph. It does not provide the President with the authority to decide that, absent such an agreement and such a finding, asylum-seekers must make their claims only by presenting themselves at official “ports of entry.”

              1. It seems to me if you are right the Presidents only option is to keep them out, if the can’t cross the border illegally, and don’t present themselves at a legal port of entry then they can’t make an asylum claim.

                1. “It seems to me if you are right the Presidents only option is to keep them out”

                  Nobody’s disputing his power to keep them out.

                  What’s at issue is his categorical denial of asylum to the ones who already got in.

                  1. It’s a legal game of tag – just slip past the border guards and you can get your hearing, if they keep you from crossing the border, no hearing for you.

                    1. “It’s a legal game of tag – just slip past the border guards and you can get your hearing, if they keep you from crossing the border, no hearing for you.”

                      Yes… the President’s choices have led to the very increase in illegal immigration he wants to claim to be fighting against.

                    2. “Why do you make me illegally immigrate to your country? You know how much I want to respect your laws?”

      2. You do a seem to like ad hominem nonsense – if you were as clever as you obviously think you are it would still be annoyingly immature. You might just try and remember that snark is no substitute for thought. Trump is obviously trying to get a deal with Mexico. In this case, lawyers would call such a “deal” a bilateral agreement. Am I going too fast for you? No? Well let’s continue then. Given the nature of the current situation – imminent danger of multiple precedent setting large border breaches – Trump is having to state what his policy will (quite legally) be in the near future. That’s what is known as a bluff” or as Scott Adams might say “persuasion.” In the political context such behavior is not only acceptable – it is (unfortunately) frequently necessary. It’s sort of why the police don’t apply for a TRO when they see a suspected bank robber running out of a bank. Yes, the law and the constitution have to (and will be) be followed [insert clever blah blah blah here]. When you finish law school – get some real world experience. The law doesn’t operate very well without it. That concludes my end of year immersion in the comment section.

        1. ” Trump is obviously trying to get a deal with Mexico.”

          And counting his chickens before they’ve hatched.

    2. Brett, the problem with that argument is

      pursuant to a bilateral or multilateral agreement.

      The US has a safe third country agreement with Canada, such that most asylum seekers that arrive in one country are not eligible for asylum in the other, but not with Mexico. Last week president Trump announced that the new Mexican government had agreed to create such an agreement, but that announcement was disputed by the incoming interior minister.

  4. Applying for asylum, and having it granted are two different things; like legal immigration, and criminally crossing the border.
    Let them apply.
    Trump can be printing up a bunch of refusal declarations, and at the initial hearing, as as soon as the name is obtained, the form can be filled out denying asylum due to crossing multiple other countries, and back they go. Maybe use national emergency as an excuse to contract hearings out to a few thousand of lawyers appointed as judges for the duration or something.
    The creative possibilities are endless.

    1. When you don’t concern yourself with following the law, the sure are!

      1. Trump may have no problem ignoring the limits of Presidential power, but most of the bureaucracy are loyal to the United States, and not to Trump.

        Imagine the fun if it turns out that the “form letter” rejections have an “accidental” misprint in them, effectively stating that asylum is granted. You think TRUMP is going to read through the thing all the way to the end?

        1. most of the bureaucracy are loyal to themselves you mean

          1. No, as a matter of fact, that’s NOT what I mean.

  5. Which is worse-trumps complaints, or judges rulings say in the daca case?

  6. Also worth reading by David Post:


    8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

    Whenever 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.

    http://www.law.cornell.edu/uscode/text/8/1182

    Note that there is no exception to this section for refugees, asylum seekers or federal district judges.

    1. I remember how the Posts of the world were absolutely convinced beyond a shadow of the doubt that Trump was losing the “travel ban” case that he won.

      1. You probably don’t remember, then, how the “travel ban” that ultimately made it to the Supreme Court had addressed the earlier versions’ most prominent constitutional problems.

        1. Another way of looking at it is that the President’s opposition helped refine the ban, to make it OK.

        2. All versions got the same “he can’t win” treatment.

          1. And 2/3 of these predictions were correct.

    2. Cited in the proclamation, as a matter of fact. ( The law, not Post.)

    3. The judge’s argument about this:

      “Congress located the President’s authority to suspend entry in ? 1182, which governs admissibility, not asylum. To the extent that Congress delegated authority to limit asylum eligibility, it conferred that authority on the Attorney General, who, unlike the President, is subject to the procedural requirements of the APA. See Franklin v. Massachusetts, 505 U.S. 788, 800, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992). When Congress wanted to delegate authority directly to the President in immigration matters, it did so. See, e.g., 8 U.S.C. ? 1182(f); cf. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173, 113 S. Ct. 2549, 125 L. Ed. 2d 128 (1993) (“The reference to the Attorney General in the statutory text [of 8 U.S.C. ? 1253(h)(1) (1988)] is significant not only because that term cannot be reasonably construed to describe either the President or the Coast Guard, but also because [*40] it suggests that it applies only to the Attorney General’s normal responsibilities in the INA.”). Here, it did not. “In such circumstances, the President may still give directions to executive agencies, and he can usually fire a recalcitrant agency head. But he cannot take away the agency’s statutory authority or exercise it himself.” Main St. Legal Servs., Inc. v. Nat’l Sec. Council, 811 F.3d 542, 558 (2d Cir. 2016). This too, is unambiguously foreclosed by the statute.”

      1. So, he suspends entry, they apply for asylum from outside the country. Which is exactly what he has proposed, so that they can’t just disappear, as most applicants do.

        Then they get refused asylum on the basis that they were no longer refugees by the time they got here.

        All neatly tied up and legal.

    4. Or Christians or Muslims, for that matter.

      There are a lot of cross-cutting statutory provisions here that don’t necessarily jive well. But I think, reading as a whole, one has to acknowledge that, (i) while the president may have the authority to suspend asylum-based admissions for a class of immigrants whose entry would be “detrimental to the interests of the United States,” (ii) it is dubious that he has the authority to do so in a way that contravenes explicit statutory requirements applicable to asylum.

      I honestly don’t understand why Reason commenters are boosting Trump on this. The asylum statute is extremely clear on the point that Trump has lost. By supporting Trump, people are endorsing simple illegality.

      1. LOL, we are dealing with large scale illegal immigration – hundreds of thousands every year – and you claim we are endorsing illegality.

        1. We have all kinds of fully valid legal authorities to deal with the illegal immigration problem. If more are needed, the President has only one place to turn: Congress.

          1. “If more are needed, the President has only one place to turn: Congress.”

            President Obama found that more resources were needed, and asked Congress for the authority to deport more people. They didn’t even bother to consider the request.

          2. “If more are needed, the President has only one place to turn: Congress.”

            The Open Borders party controlled the Senate [except for nominations] because of the stupidity of maintaining the filibuster this term and will control the House next term.

            1. Do you get postcards from this reality, or is your only connection via Internet?

              1. What Trump immigration legislation would have gotten 60 votes in the Senate in 2017/2018 or will get 218 in the House in 2012?

                Its like you never heard of the RESISTANCE!

                1. “What Trump immigration legislation would have gotten 60 votes in the Senate in 2017/2018 or will get 218 in the House in 2012?”

                  One that was crafted by someone who took the time to consider both parties’ concerns. Are you conceding that Trump is/was incapable of reaching out beyond his base?

      2. One of the other issues the judge brings up is that we have treaty obligations which would effectively obviate such requirements (we could require them to enter in a certain way but it can’t affect the asylum process). I don’t really care for treaties but I also don’t believe that the President should be able to contravene one in such a careless manner.

        Text cited in decision: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of [A]rticle 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show [*35] good cause for their illegal entry or presence.”

        1. Again, perhaps relevant when they entered Guatemala, directly from Honduras. Utterly irrelevant by the time they crossed Guatemala and Mexico to arrive here.

        2. They are not refugees, just normal economic migrants.

          1. “They are not refugees, just normal economic migrants.”

            Let’s assume that this is true, for argument. Now… the reason for denying them an opportunity to apply for asylum, is… what?

            Now, let’s make a different assumption. There are refugess from political and economic chaos, who want to enter the United States, which is largely free of both (at least most of the time.) The argument for letting them apply for asylum is this: Some might qualify for asylum, but we won’t know until the applications come in and are reviewed. Denying them categorically unfairly punishes the few(?) who should have been approved.
            This is the due process argument… basically, that making decisions before you have good information is a bad policy, and leads to mistakes.

            1. Sure, let them apply for asylum: From outside the country. We have plenty of consulates in Mexico where they could have applied for asylum, and they walked past them.

              Because plan A was to sneak across the border and become illegal immigrants, applying for asylum is only plan B, because it involves our having the chance to tell them “no”.

              Which we would do, because at this point they aren’t refugees anymore. (If they ever were.) They stopped being refugees when they were offered refuge, and turned it down.

              Look, when somebody walks past Motel 6, walks past the Comfort Inn, and after a long, long hike turns up at the Hyatt, and says, “I had to flee my home, won’t you give me a free room for the night?” you tell them “No.” Because if it were true, they’d have asked at the Motel 6 or Comfort Inn. You know they’re just looking for a free hotel room, and want it to be a good one.

              The bottom line here is, we don’t owe them anything. Zip, zero, nada. I perfectly understand their desire to live in the US rather than Honduras, Guatemala, or Mexico. That’s perfectly rational.

              But their desire to live here doesn’t give us any obligation to let them. None at all.

              1. “Sure, let them apply for asylum: From outside the country. We have plenty of consulates in Mexico where they could have applied for asylum, and they walked past them.”

                Perhaps something (or someone) convinced them that they had no chance applying from outside the country, and some chance applying from inside it.

                “Because plan A was to sneak across the border and become illegal immigrants, applying for asylum is only plan B”

                It seems we have a differing definition of “sneak”. We know where they are, and have known pretty much the whole way.

              2. Why do you think asylum exists, Brett, of not for some moral obligation to be charitable to those in extremis?

                Your argument that their lives can’t be so bad because they don’t take the first country they see isn’t how asylum law works. And you can see why – foisting refugee crises off only to bordering countries isn’t a sustainable model.

                Nor is it particularly charitable to require your neighbor to be the charitable one.

                This performative lack of charity an empathy by the GOP is quite the sociological eye-opener.

          2. We figure that out via an individualized asylum hearing, not Bob’s considered generalization.

        3. “…provided they present themselves without delay to the authorities…”

          So what is “without delay”? After they rent a house? After they enroll their children in school? After they apply for government benefits? After they steal a social security number to illegally go to work?

          Just how soon do they have to present themselves to “the authorities”?

          1. “Just how soon do they have to present themselves to “the authorities”?”

            Couple of years back, they were sending minors, without parents, to the U.S., and they were turning around and turning themselves in to the first uniform they found. They got fed, clothed and housed for a while at taxpayer expense, and then they had their asylum hearing, and shortly thereafter returned to their home countries.
            We only hold about 400,000 deportation hearings per year, and the kids turning themselves into Texas sheriff’s deputies were cutting into the total, so President Obama asked Congress for the authority to have more deportation hearings offices so we could have more deportation hearings so we could have more deportations. The Republican-led House didn’t even bother to meet to discuss the request, and no action was taken.

            1. I’m going to assume that you either hit enter before you were done or you meant to reply to someone else since you didn’t answer the question that I asked.

      3. “By supporting Trump, people are endorsing simple illegality.”

        You’re forgetting:
        “When the President does it, it is not illegal.”
        — R. Nixon

        1. Trump has said the same insanity.

    5. Maybe you want to consult a lawyer, so you can learn what the issue actually is.

      Nobody is arguing that the President has to allow the asylum-seekers entry to the country. He doesn’t have to, and doesn’t, period. The President ALREADY denies the asylum-seekers entry. The problem is that they are ignoring this, bypassing the ports of entry which would have turned them away, entering the country without permission, and applying for asylum from within the country.

      The President wants to play heads I win, tails you lose. If you show up at the ports of entry, you get turned away without a hearing. He now wants to add a new rule, not in the original playbook, that if you apply for asylum anywhere BUT at the ports of entry, you get turned away without a hearing.

      It’s funny how all the supporters of due process from the Kavanaugh hearing are now turning up arguing against due process now.

      1. So Congress intended that the proper way to apply for asylum was to enter the country illegally first?

        1. “So Congress intended that the proper way to apply for asylum was to enter the country illegally first?”

          No, Congress intended that A proper way to apply for asylum was to enter the country illegally first. Congress intended to not categorically deny asylum based on illegal entry, yes. It’s right in the statute. You might want to look up “feet wet, feet dry”.

          Due process is a thing that Americans have historically supported. We deny asylum to most of the people who ask us for it… but they get a chance to show that some aspect of U.S. law says they can stay BEFORE they get shipped out.

          1. Maybe, but if you were honest you would have to admit the goal of 99% of these “asylum seekers” is not a successful asylum claim, its applying for asylum, and getting released while the claim is processed, and then trying to blend in and making as much money (for most, by working) as they can before they are sent back.

            The fact they are trying to game the system is the reason most Americans support Trump in keeping them out.

            1. “Maybe, but if you were honest you would have to admit the goal of 99% of these “asylum seekers” is not a successful asylum claim”

              I’m AMAZINGLY honest, and I’d quibble rather a lot on 99%.

              My take is that a substantial number of them honestly believe they’re going to get asylum. They’re not, but they don’t know that.

              “The fact they are trying to game the system is the reason most Americans support Trump in keeping them out.”

              You’re talking out your ass with this one.

          2. “You might want to look up “feet wet, feet dry”.

            That was a Cuban only policy.

            “The wet feet, dry feet policy or wet foot, dry foot policy is the name given to a former interpretation of the 1995 revision of the application of the Cuban Adjustment Act of 1966 that essentially says that anyone who emigrated from Cuba and entered the United States would be allowed to pursue residency a year later. ” wikipedia

            1. “That was a Cuban only policy.”

              No, it was American.

              The Cuban policy was “stay in Cuba”, until Castro gamed us and emptied his prisons and mental hospitals into Florida.

            2. IF (note this word) Congress had decided to require that all requests for asylum be made from outside the country, they could have done so. But then we couldn’t have welcomed all the Cubans fleeing from Castro, who got a policy of “if you are standing on U.S. soil, you get to stay here.” instead of “go the Hell back to your own country, and apply to get in like everybody else”.

              I’m generally of the opinion that people who want to be here, and have shown sufficient capability to get here, should be allowed to stay unless a compelling reason to deny them exists. This lets us swipe smart, capable people from the countries where they’re unhappy, whether it be Cuba or anywhere else. This is a policy opposed by those who’d prefer NOT to compete economically with smart, capable people.

              1. These aren’t smart, capable people. They’re people who are willing to walk a long distance, (Which, yes, is a point in their favor, but we don’t have a crying need for marathon walkers.) and break laws along the way. Which last is a BIG point against them.

                And behind them is another caravan, and another, and another. And you might be keen to live in a real life enactment of “The Camp of Saints”, but you’re in the minority in that regard.

                1. “These aren’t smart, capable people.”

                  True, they don’t have the ability to accurately assess people based on reading vague statements about them on the Internet, like you can. But that’s a pretty specialized skill, and surprisingly not in much demand… so many amateurs are SURE they can do it, too.

                  “They’re people who are willing to walk a long distance”
                  As you say… a point in their favor. They want something, and are willing to put forth actual effort to get it. I think you underestimate the value of this.

        2. Not quite, but pretty close. Congress intended that entering the country illegally would not be a bar to an asylum application. If that seems improbable to you, consider the Cuban refugee context which Republicans in Congress were eager to accommodate.

  7. Now, David, you’re not allowed to post obvious facts, when they expose Trump’s authoritarian stupidity.
    It causes Trumptards to scurry around like cockroaches, bellowing like blowhards.

    Trump himself told us to NEVER believe Trumptards, who are Trumptards because they would lie to defend him from own murder, in broad daylight, with witnesses. Even the followers of Hitler and Stalin weren’t so morally bankrupt.

    1. “Trumptards to scurry around like cockroaches” – tolerant and inclusive lib alert!

  8. It’s beyond ironic that Trump has chosen this case for a rant

    It’s not ironic at all. Unassailable cases with irontight reasoning are ideal targets for complaining to rile up the base without any risk of having to convert those complaints into policy.

  9. The worst thing about Trump is how he manipulates his enemies (both judicial and political) to bring to the forefront the issues he wants to campaign on. Now as we are entering into the 2020 campaign he’s ensured that the issue of illegal immigration and immigrants gaming the system with the help of Democrats and Judges is going to be a major campaign issue. And they provided him with exactly the sort of video of hordes of immigrants storming the border the throwing rocks at the border patrol that he will need for the campaign.

    I guess he knows most voters view the economy and tax cuts as “what have you done for me lately” issues, its hard to motivate the base when they are fat and happy. He was going to need something more, and now he has it, thanks to the resistance.

    1. “Now as we are entering into the 2020 campaign he’s ensured that the issue of illegal immigration and immigrants gaming the system with the help of Democrats and Judges is going to be a major campaign issue.”

      I don’t think this is true. I mean, he’ll campaign by claiming that Democrats are all open borders fools who want to let all the ISIS terrorists come in, but he’d do that regardless. Take a look at some of the things that he actually used in THIS campaign season: He’s saving Obamacare from the Democrats who are out to destroy it, there’s a secret middle-class tax cut in the works, even though nobody in Congress knows about it and they’re all in recess, and NO COLLUSION!!!.

      The past two years have taught me not to try to predict what Trump will do in the future. Now matter how crazy the imagination, the reality will be crazier. The constants will be A) Trump will claim, straight-faced, to have never made any mistakes, B) mistakes were made by other people, some opposed to Trump, some loyal, and C) only Trump can save us from all the mistakes, in ways that you people with your facts and experience and training and education just wouldn’t understand.

  10. So I guess the question is, of two conflicting statutes, which one *clearly and obviously to anyone who isn’t a hack* applies to this situation.

    1. The, uh, problem with your argument is that there are two statutes that don’t conflict.

      1. I saw the quote from the court’s opinon, but so far that’s just a district court.

        Maybe another court would, you know, someone who isn’t an “Obama judge,” would decide things differently?

        1. Yes, yes, the bad black man only appointed dishonest judges and they’re ALL against you, you poor sap.

          1. First person to invoke race is probably a racist.

            1. OK, I’ll concede you’re a racist, if you think that’s important.

              1. “the bad black man”

                – invocation of race.

                Retard.

                1. OK, if you insist, you’re a racist AND a retard.

                  Whatever.

                    1. OK, a racist retard with a vocabulary of unusual scope. Where are you going with this?

  11. Although standing is an issue in the case, I agree that if you can find a plaintiff with standing, that plaintiff will win hands down on the merits.

    As lawyers, you care about the law. But why should Mr. Trump? As Professor Kerr pointed out before he was elected, this whole liberal democracy/rule-of-law business has never been Trump’s thing. If the people had wanted someone who played nice, accepted rules, shared power, and respected other people’s rights, they would have voted for someone else.

    1. “If the people had wanted someone who played nice, accepted rules, shared power, and respected other people’s rights, they would have voted for someone else.”

      Like the candidate of the Magic Unicorn Party?

      1. Or any OTHER party.

  12. I have noticed that S C justices appointed by democrat presidents were more likely to rule in favor of the president when one of his E O or a law that was passed by his party is challenged. I have also noticed that S C justices appointed by republican presidents were more likely to rule according to the constitution than the other justices.

    1. “I’ve noticed that when judges appointed by MY party rule on things, they rule the way I want, and when judges appointed by THAT OTHER PARTY rule on things, they get it wrong.”

  13. David Post rendered a laughably wrong “legal” opinion of the travel ban cases. It was truly cringeworthy.

    This time doesn’t look any better, based on Post’s meager “analysis.”

    1. You had good analysis on those cases. Dunno if it was right, but it delved into the statutory issues deeply.

      Here you just ad hominem.

      I hope when you have the time you do some more substantive analysis on this issue. Especially when the main argument against have devolved from some strong initial posts into something less than substantive – attacking the judge for bias or making blanket prejudgements about asylum seekers.

      1. But I only have time for drive-by pot shots today! 🙂

        1. Completely fair – I have that kind of fun sometimes as well, as you may have seen.

    2. Where did I render a “laughably wrong ‘legal’ opinion on the travel ban cases”? I don’t recall rendering any legal opinion on it at all, laughably wrong or otherwise. Do you have a citation?

      1. First off, let me apologize for my somewhat intemperate criticisms, both above and in the past.

        Also, I completely misspoke; I intended to refer not to the travel ban but to the sanctuary cities EO and ensuing cases, which you commented on here for example.

  14. “(2) Exceptions
    (A) Safe third country
    Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.”

  15. 1182(f)
    https://www.law.cornell.edu/uscode/text/8/1182
    “Whenever 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.”

    1. It’s not disputed that Trump can bar the entry of the would-be asylum-seekers. It’s been the policy all along, AFAIK.

      What IS disputed is his claim that he has the authority to deny asylum to people who are already IN the country.

      Getting in and being allowed to stay in are two entirely separate things. 1182(f) is about one, but the rest of us are talking about the other.

      1. It’s not at all clear that he can deny the opportunity to ask for asylum to people who are already in the country.

        The asylum itself? Actually, it’s pretty clear he (And by “he”, I mean the administration.) can deny the asylum itself. Even, yes, on the basis that the applicant didn’t enter at a port of entry.

        1. “Actually, it’s pretty clear he (And by “he”, I mean the administration.) can deny the asylum itself. Even, yes, on the basis that the applicant didn’t enter at a port of entry.”

          You’re using the words “it’s pretty clear he can” to mean “the statutes and Constitution say he can’t, but he won’t let trivia like that stop him”, right?

  16. If Trump is wrong about judges and Roberts is right why do all of these cases against Trump get filed in the Ninth Circuit? Could it be that the plaintiffs know that they have a better chance of winning in the Ninth Circuit than elsewhere? And if that is the case doesn’t that provide evidence that Trump is right and Roberts is wrong?

    1. The Ninth Circuit is the biggest (by far) of the circuits, and when the plaintiffs are states, they don’t get a choice which circuit to file in.

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