Trump's Asylum Ban Violates Standing American Law

It is unlikely to withstand legal scrutiny


This week President Donald Trump summarily eliminated almost all asylum protections for Central Americans and other migrants seeking to enter the United States from the Southern border. The president's move is legally questionable for a host of reasons, the most important being that he is attempting an end run around Congress and doing by administrative fiat what he couldn't through normal legislative channels.

The rule, which will go into effect immediately, basically says that anyone—men, women, children, even unaccompanied minors—who pass through another country first will be ineligible for asylum at the U.S. southern border unless they first apply for and are denied asylum in the countries on the way. Migrants already in America will be exempted, even if they entered without authorization between ports of entry. But perversely, Central American migrants who listened to the administration and waited in Mexico to come in legally through an official port of entry will be out of luck.

The administration hopes this change will end the recent rush of migrants from Guatemala, El Salvador, and Honduras—never mind that one reason for said rush is precisely that these migrants feared Trump would pull some stunt like this and wanted to get here first.

Can Trump's new rule withstand the court challenges that have already been filed? It's unlikely.

For starters, this is not just a rule: It is an "interim final rule" jointly issued by the Department of Homeland Security and the Department of Justice. As such, it dispensed with normal rule-making niceties—minimum notice requirements, comment periods, etc. —that are typically required before a change of such magnitude.

The administration says it can do this because the country is facing a border emergency. Attorney General William Barr insists the border is "overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens." But to the extent that border resources are "overwhelmed," it is because of the administration's zero tolerance policy. Under this approach, the administration puts everyone—even asylum seekers who pass the initial "credible fear" screening—in detention rather than releasing them to wait with their friends and family in the country while immigration courts hear their asylum claims, as previous administrations have done. So this "emergency" is of the Trump administration's own making.

The administration has repeatedly tried to use the emergency argument to persuade Congress to close the alleged loopholes in asylum law that it claims have made America a migrant magnet (such as the 1997 Flores settlement, which requires migrant parents with kids to be released from detention within 20 days). So far, Congress hasn't bought any of this. If Congress ain't buying it, the courts probably won't either. As Margaret Stock, an immigration lawyer with the Federalist Society, tells me, President Harry Truman couldn't even persuade the Supreme Court that the Korean War was enough of an emergency to let him seize private steel mills to preempt a strike and keep wartime production going. The Trump administration's asylum move will raise similar concerns, Stock notes.

Furthermore, the new rule will run afoul of long-standing international and American legal requirement that asylum seekers be given a due hearing. America is required to hear migrants' cases unless they are coming through countries with whom the U.S. has a Safe Third Country Agreement. Such a country has to offer a similar level of safety, security, and due process as the United States. The only country that currently has such an agreement with America is Canada. The agreement makes it incumbent upon Canada to consider the asylum petition of migrants on its soil rather than just letting them into the United States. Only if Canada denies their petition can they apply for asylum in America.

The administration is trying to strong-arm Mexico and Guatemala into signing similar agreements, which would require these countries to offer permanent asylum to migrants rather than merely temporarily warehousing them. But even if these countries agree, U.S. courts are unlikely to be convinced that the new rule is kosher. Why? Because these countries, particularly Guatemala, aren't "safe."

The U.S. government's own assessment shows that Guatemala, through which migrants from El Salvador and Honduras must pass when moving north, is one of the most dangerous countries in the world. Women in Guatemala face extremely high rates of murder, and children are often targeted for sex trafficking or forced to join gangs. Things are so bad that in the past nine months, around 190,000 Guatemalans fled to neighboring countries—and about half of the Central American migrants flocking to America are in fact Guatemalans. So even under the new asylum rules and a Safe Third Country agreement with Guatemala, the administration couldn't send fleeing Guatemalans back to their country; that would be refoulement, or a forcible return to an active danger zone, which is legally prohibited. And if America can't send Guatemalans back to their own country because it is too dangerous, how can it send Hondurans and Salvadorans there?

Trump thinks he can make America safe by turning it into a fortress. In fact, he is creating the conditions for major continental upheavals that will turn a fake emergency into a horrendously real one. If fleeing Central American migrants are "overwhelming" America's border to the point of a crisis, what will happen to Mexico and Guatemala, far less prosperous and stable countries, if they are forced to absorb all of them?

Courts are going to have a hard time keeping a straight face listening to some of the administration's tortuous legal rationales. So why is Trump doing this? He is grandstanding to stir up his base and keep alive the notion that America is under siege. He hopes to translate a legal loss into a political victory—asylum seekers, America, and the region be damned.

A version of this column originally appeared in The Week

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76 responses to “Trump's Asylum Ban Violates Standing American Law

  1. Waiting for commenters who know the law to put Shikha in her place

    1. I tore apart Dalmia’s claims in her last post two days ago. You can read that here:

      The accuracy of Dalmia’s piece today is vastly superior to the one she wrote two days ago. If you read my comment at that link, it’s about why Trump’s order is unlikely to survive scrutiny by the courts–just not for the reasons Dalmia was saying. The reasons she’s giving today are far more accurate.

      To put it succinctly, both the treaties we’ve ratified concerning the treatment of asylum seekers and U.S. law allows the president to enter into a “Third Safe Country” agreement–so long as the agreement is bilateral or multilateral. By the treaty, Trump can’t arbitrarily decide that another party to the treaty has to take all our asylum seekers. Mexico would need to agree to that. Because Mexico hasn’t agreed to be part of a Third Safe Country agreement (yet), we are required by treaty and U.S. law to consider the asylum claims of people who present themselves at the U.S. border here in the United States. That is why Trump’s order is unlikely to survive scrutiny by the courts. See the details at my link above.

      Some of Dalmia’s other claims are still questionable.

      1) It is not necessary for the U.S. to grant an asylum hearing to everyone who asks for asylum. If the person asks for asylum for a reason that doesn’t involve persecution, then they aren’t even granted a hearing. The Guatemalan government refuses to protect me from violence because I’m gay or Mormon is a claim of persecution. I’m leaving Guatemala because I can’t find a job and my kid is staying with my cousin in Chicago is not a claim of persecution–and those people are not granted an asylum hearing.

      I broke the numbers down elsewhere, but it may be of interest that less than 10% of the people who ask for asylum are granted it.

      2) The idea that Guatemala, for instance, isn’t a “safe” country is probably not a strong argument from a legal perspective. If you’re being persecuted by the government of Honduras because of your political beliefs or because of your religion, the question isn’t whether Guatemala or Mexico is safe from the perspective of crime or traffic accidents. The question is whether you’d be safe–from persecution–by the by the government of Honduras if you were granted asylum in Guatemala or Mexico. If you’re seeking asylum because you’re gay and the government of Honduras is killing gay people, then if you’re safe from that kind of persecution in Guatemala or Mexico, then Guatemala and Mexico are both a “Safe Third Country”. The statues and treaties that allow Safe Third Country agreement already stipulate that they’re void if the asylum seeker in question would be persecuted in the country with which we have an agreement anyway. I consider her argument, there, weak.

      In all fairness, Dalmia can be honest. I think she’s making an honest effort to get this right. She seems to have revised some of her views to match reality in this piece. She also wrote an article a couple of months ago (from memory), in which she admitted that Trump’s overturning of DACA was likely to survive the scrutiny of the Court when they hear the case in October. I think it’s hard to be objective about things when we care passionately about them, and Dalmia is obviously passionate about the plight of asylum seekers.

      1. Safe Third Country, Third Safe Country, my dyslexia is acting up again, but you get the point.

      2. Um…Shikha wrote:

        President Harry Truman couldn’t even persuade the Supreme Court that the Korean War was enough of an emergency to let him seize private steel mills to preempt a strike and keep wartime production going. The Trump administration’s asylum move will raise similar concerns, Stock notes.

        Seizing hundreds of millions of dollars of private businesses is not similar to refusing asylum to stem the tide of illegal immigrants. And you think Shikha is trying to be honest?

        1. I didn’t exactly say she was being honest. People can make an honest effort and fail, and I said she’s making an honest effort to be honest. I think this is evidenced by the fact that this piece is an honest attempt to revise some of the inaccuracies of her post from two days ago. I also think she, like a lot of other people, has . . . um . . . difficulty with objectivity when it’s something she cares about passionately.

          Generally speaking, you’ll find that people who disagree with you give a lot more of a listen to you when you’re willing to look at their motives in the best possible light–given whatever it is they’re wrong about.

          George Orwell was a passionate socialist, and I despise socialism. However, I can see some good in what he wrote, too. When he’s going after Stalin, I don’t see much to complain about–even if his motive is to try to purge socialism of authoritarians so that people will willingly accept the beauty of true socialism–as he sees it. His motives are pretty much beside the point to me. Authoritarian socialism is an awful thing–and so long as he’s being honest about that, what do I care about his motives? If you’re best friend accuses your wife of cheating on you because he wants her for himself, do you care more about his motives–or do you care about whether he’s right?

          I assume Dalmia wants freedom and prosperity for asylum seekers and American citizens, too. Even if she doesn’t, her revision of today is closer to the honest truth than what she was writing two days ago, and she deserves some legitimate credit for that. I’m objective and honest enough that I can give objective and honest assessments of arguments made by people I don’t admire.

          My honest condemnation of Hitler is such that it doesn’t require me to pretend that he was a bad tipper and mean to his grandmother. If he tipped the barmaids in the beer hall well and was really good to his grandmother, why should I pretend otherwise? His behavior regarding the holocaust, etc. stands on its own. Because I give him credit for being nice to grandmother doesn’t mean I don’t condemn him for the holocaust. In fact, knowing that I can be honest about good things done by someone I despise like that makes my condemnation of him all the more poignant.

          If Jane Fonda doesn’t like Richard Nixon and the Vietnam War, she’ll tell you that American POWs who were being tortured by the Vietnamese are actually a bunch of liars. That’s what we all do when we’re unwilling to look at the good of the people we oppose and the bad of the people we like. Jane Fonda was a pretty good actress. Uncle Ho won a political and military victory against incredible odds. You ought to hear all the things I despise about him.

    2. 8 USC 1182 (f)
      (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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

      We are now on year 3 of mendacious talking butts ignoring the plain language of The Law while babbling on about “the law”

      1. “”restrictions he may deem to be appropriate. “”

        Will the court interpret “he” as themselves?

      2. Glad I checked the comments, I was about to post that myself.

  2. Trump’s Asylum Ban Violates Standing American Law

    NO, it doesn’t you lying hack.

    1. hilarious that LC1789 calls someone else a hack. Pot, kettle, black, all that.

      1. I called YOU a troll and that was super accurate.

        1. you are the judiciary expert here, so you must be right.

          1. Luckily, you don’t have to be a jurisprudence expert to know that not allowing non-Americans into the USA violates no American law.

            In fact, there is no Constitutional requirement to allow non-Americans to enter the USA and that is Supreme Standing American Law.

      2. I would, whoever the fuck you are, LC is right. Your response makes no sense. Likely you are a sock for one of the more cowardly progtards that slither about here.

        Best you go drink some Drano.

  3. My family has been here since at least the late 18th century. I say, everyone whose family immigrated before then should be sent back to the “s**thole countries from which their families came. (sarc font off)

    1. Residents of Austro-Hungarian, Ottoman, and Japanese Empires hardest hit?

      1. And the Irish, the Germans, the Italians, and lots of others. 🙂

        Then again, my half-sister’s family has been here for at least 10,000 years, and she wants ME to go back to England 🙂

          1. Well, Tulpa, I do have to admire the consistency in your comments: rather bot-like 🙂

            1. Learn to read better then socko.

        1. Your half sister should go back to Siberia!

          1. Yeah, that’s what my horses say, too, seeing how her distant relatives helped wipe out their distant relatives 🙂

              1. My goodness. Please forgive me if’n I ignore your advice!

            1. Supposedly my family is descendant from Leif Ericson, who the King Olaf the II granted royal governership of Vinland, Markland and Helluland in 1002. So fuck you all (unless your native) my claim comes first!!

  4. I would not be surprised at all if this is upheld. I think the author is engaging in wishful thinking. But we will see won’t we. So far every prediction reason authors have made about trump has not come true.

  5. “If fleeing Central American migrants are “overwhelming” America’s border to the point of a crisis, what will happen to Mexico and Guatemala, far less prosperous and stable countries, if they are forced to absorb all of them?”

    Not my problem. Not our problem. We should stay out of it.

    As someone who leans Right I find it hilarious that I have to say this to a left leaning publication

    1. love it or leave it.

      1. Or call it racist then go to brunch.

    2. “”“If fleeing Central American migrants are “overwhelming” America’s border to the point of a crisis, what will happen to Mexico and Guatemala, far less prosperous and stable countries, if they are forced to absorb all of them?”””

      If America is putting them in “concentration camps” perhaps they will be better off in Mexico or Guatemala.

      tRump’s America is evil and he is Hitler, but people will be better off coming here instead of somewhere else.

      If only Leon Festinger was alive today.

      1. When you argue based on emotion you don’t need to make sense. It’s what progressivism is all about

        1. Is patriotism the manifestation of an emotion?

          1. It is enthusiasm toward a set of principles that brought about the most prosperous civilization in the history of the world.

            Other countries can be patriotic about whatever they want but they have nothing compared to what the United States has done for mankind.

          2. Tell us the one again where you’ll do anything for “liberty.”

            Then tell us how you’re not an ends-justify-the-means progressive.

    3. The truth is though that Mexico’s borders are only being overwhelmed because migrants are using their country as a funnel to America. If America closes it’s borders then I am certain that the mass migration through Mexico with reduce to a mere trickle.
      From my understanding, under UN rules of asylum, asylum seekers must claim asylum in the first safe country they enter. The main argument here is whether the UN considers Mexico as a safe country or not.
      My take on this, is if the asylum seeker is no longer in fear of their life in the first country they enter then this country is safe to them.
      Asylum seekers do not just get to pick and choose which country they want to settle in. That is NOT how the asylum system works.
      Once you are safe you become a migrant and subject to the migration laws of any other country you want to move to.
      America has laws governing it’s migration, the first of which is that you enter the country through a legal point of entry.
      You do seek into the country in the dead of night like a thief

      1. “Asylum seekers do not just get to pick and choose which country they want to settle in”


        “The main argument here is whether the UN considers Mexico as a safe country or not.”

        If it’s not then there is no justification to allow open borders. That kills the popular argument around here. It also puts me in a tough spot because fuck the UN

  6. “interim final rule”

    Nice band name.

  7. Dalmia’s piece would have some moral force if most asylum seekers who were released to live “with their families” actually showed up for their court hearings. The fact that about 90% just skip it shows two things: first, we do have a crisis at the border, and second, this is not about fear of persecution in their home countries.

    As usual, Dalmia glosses over the real issues because “America is supposed to be bank roll the world”.

      1. According to sworn statements by the acting head of the DHS 90% during the first quarter of 2019 did not show up. Your link only discusses 2012-2018. As this doesn’t provide evidence for the claim made by the DHS, this link does not invalidate (not validate) the statement of the DHS director.

      2. “If fleeing Central American migrants are “overwhelming” America’s border to the point of a crisis, what will happen to Mexico and Guatemala, far less prosperous and stable countries, if they are forced to absorb all of them?”

        Is this the USA’s problem Jeff?

        1. Eventually it will be. Then what?

          1. Global warfare would actually benefit the open borders crowd. A great reason to import the third world and get another step closer to Libertopia

        2. I mean we could wait until there’s actual civil war and blood in the streets of Mexico before doing anything. Sound cool?

          1. Is it libertarian to interfere in other countries’ battles? That’s all I want to know. Because you told me its all about the freedom of movement on our borders.

            Libertopians love freedom of movement and the NAP until other people fuck up their own countries, then they want to fix it or bring it here. Amazing how that works.

            1. I have a much better idea than advocating for the government to meddle in the internal affairs of Mexico and Central American countries. The US government has done far too much of that.

              A better idea is to let migrants come here, work, and send remittances back home.

              The migrants find the economic opportunity they are seeking, and the remittances are a form of purely voluntary “foreign aid” that involves no coercion and no meddling whatsoever.

              I suppose the alternatives are for the US government to more directly interfere in those governments, which they’ve been doing off and on since the early 20th century; to send foreign aid to corrupt governments, which would be wasted and used to prop up dictators; or to build giant walls to keep them all out, which only turns all of Central America, and Mexico, into a pressure cooker which will eventually explode, with bad consequences.

              What is your better plan?

      3. Pedo Jeffy, always on the wrong side of everything. I wouldn’t click on his link anyway. It might be kiddie porn.

    It may be that the second largest immigrant population is starting to trend more conservative. Those fleeing socialism in Asia, unsurprisingly, are not fans of socialism here. Additionally, again unsurprisingly, they are not fans of affirmative action and being taken for granted by Democrats. This is the problem when a party becomes so focused on identity politics, they’re likely go alienate some identities.

  9. Their credible fear claims are belied by the fact that they passed through at least one if not several other countries they could have stopped in and been safe. They (some) risked further dangers by rejecting the asylum offers from Mexico, because their fears were not real; instead they are driven by economic opportunities, which is understandable but alas not a valid reason to claim asylum. Indeed, making such a claim when there is no credible fear means that your claim was fraudulent on its face.

  10. “I’m President Donald Trump, and I approved this message.”, Part 1.

    Bill Clinton talking about immigration in the 1995 State of the Union.

    All Americans, not only in the States most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan. We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.

  11. “I’m President Donald Trump, and I approved this message.”, Part 2.

    While in office, President Barack Obama said that poverty and crime alone are not justifications for asylum claims, comments that closely mirror the sentiment of the Trump administration.

    “[U]nder U.S. law, we admit a certain number of refugees from all around the world based on some fairly narrow criteria. And typically, refugee status is not granted just based on economic need or because a family lives in a bad neighborhood or poverty. It’s typically defined fairly narrowly — the state, for example, that was targeting political activists and they need to get out of the country for fear of prosecution or even death,” Obama said in July 2014.

    The Democratic president even called on asylum seekers to lodge their claims in their own countries.

    “There may be some narrow circumstances in which there is a humanitarian or a refugee status that a family might be eligible for. If that were the case, it would be better for them to be able to apply in-country rather than take a very dangerous journey all the way up to Texas to make those same claims,” he said at the time.

  12. “I’m President Donald Trump, and I approved this message.”, Part 3.

    President Clinton used one of his radio addresses in May of 1995 to tell the American people, “Our nation was built by immigrants…But we won’t tolerate immigration by people whose first act is to break the law as they enter our country.”

    The president vowed to deport “100,000 illegal immigrants caught in a huge backlog of cases and to step up enforcement of immigration laws at the border and in the courts.”
    “Every day, illegal aliens show up in court who are charged. Some are guilty and surely some are innocent. Some go to jail and some don’t. But they’re all illegal aliens,” Clinton continued. “And whether they’re innocent or guilty of the crimes they were charged with in court, they’re still here illegally, and they should be sent out of the country.”

    “We are a nation of immigrants, but we are also a nation of laws,” Clinton said in 1995. “And it is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years.”

  13. Trump is grasping at straws to try to stem the flow of immigrants. Every other thing he has tried has failed. This is another attempt. It will get snarled in the courts and change nothing.
    Arguably, for migrants to get stuck in Mexico is the least bad solution to this disaster that is damaging thousands of people each day that it continues. That it may not be legal doesn’t change that fact.
    Opening the border is a worse solution. Warehousing hundreds of thousands of people is a worse solution. Reforming our immigration solution would be a great solution, but … now I’m just kidding around.

  14. Always good to see the scum of the earth come out and defend concentration camps.

  15. Whatever. I just dont care. Keep the scumbags out by whatever means. I say bombing and shooting them would work better.

    1. There we go. Your “dehumanization of the other” part of the road to fascism is complete

      1. “No human race is superior; no religious faith is inferior. All collective judgments are wrong. Only racists make them.”

        Elie Wiesel

      2. Amazing how selective your concern is with this. But you care. Truly, you do.

        1. So, your entire contribution to the Reason comment boards, nowadays, is just to respond to every one of my comments, with tu quoques and ad-homs?

  16. Maybe he’s learning the Deep State trick of getting away with what you can for as long as you can.

    Certainly, Obama was a master of this. Did anything he pleased, had his actions overturned by the Supremes a gazillion times, but ho hum, got away with it in the meantime.

  17. I’m picturing the survivors of the Titanic disaster in their lifeboats, when a rescue ship approaches:
    – Don’t worry, we’re here to rescue you.
    – Do you have first class accommodations available for us?
    – Well, no. We’re a rescue ship. We have warm blankets, dry clothes, a bed, food, first aid, and we’ll get you back to dry land!
    – Thank you for the offer, but we’ll wait until a ship with first class quarters is able to rescue us.

  18. […] most outlets, including publications such as Reason, have argued that Trump’s ban may not survive legal scrutiny, his administration could make a […]

  19. […] most outlets, including publications such as Reason, have argued that Trump’s ban may not survive legal scrutiny, his administration could make a […]

  20. GO BACK TO INDIA, and quit trying to destroy the nation my ancestors have lived in since it was part of Great Britain!

    Fun fact: Baltimore has a higher murder rate than Guatemala. The US has ZERO obligation to let in every illiterate peasant in the world just because their home country is a shithole. The more we let in, the worse the USA will become. We can’t let them all in… But we could certainly let in enough to destroy America. I say fuck that shit. Let them fix their own nations.

  21. […] most outlets, including publications such as Reason, are already pointing out that Trump’s ban may not survive legal scrutiny, his […]

  22. […] most outlets, including publications such as Reason, are already pointing out that Trump’s ban may not survive legal scrutiny, his […]

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