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The Law of Asylum and Politics

The midterm elections have come and gone. No one could (or should) disagree, no matter what your political affiliation is, that the politics leading up to and even since the election were and continue to be toxic, at best. Case in point was and is the President’s use of the “caravan” of migrants that trekked across Central America (that he claimed were going to invade our southern border) as the impetus to issue an “asylum ban”.

???????????????????????????????????????????????????????????????????????????Specifically, on November 9, 2018, the President issued a proclamation that, in conjunction with a rule promulgated by both the Department of Homeland Security and the Department of Justice, bars any individual from seeking asylum who enters the United States from Mexico between official ports of entry. The proclamation will remain effective for 90 days (and can be extended) or until the establishment of a so-called “safe third country” agreement with Mexico.

Advocates not surprisingly (and in my view appropriately) are up in arms, arguing that the President’s action eliminates fundamental due process protections for asylum seekers. They specifically argue that U.S. law clearly states (and it does) that all persons arriving to the United States, no matter where they enter from, have the right to seek asylum. It is true that not everyone is eligible for asylum, but nevertheless, under current U.S. law, everyone has the right to pursue it no matter whether they seek asylum at a port of entry or otherwise.

Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “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 … may apply for asylum[.]” This seems pretty clear to me.

As a result of the President’s actions, several immigration advocacy organizations sued in U.S. District Court in San Francisco to halt the asylum ban. In a ruling issued on November 19, 2018, U.S. District Judge Jon S. Tigar temporarily blocked the President’s policy of denying asylum to migrants who cross the southern border into the United States without inspection, saying the policy likely violated federal law on asylum eligibility. Really? No kidding.

Judge Tigar wrote that “[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

The Trump Administration appealed, and just recently, the 9th Circuit Court of Appeals, in a 2-1 decision, also refused to immediately allow the Trump Administration to enforce the ban.

The asylum ban represents yet another effort by the President to turn away those seeking protection under our asylum laws. Since taking office, the Trump Administration has detained more asylum seekers, it created the infamous policy that separates asylum-seeking families in connection with its “zero-tolerance” policy, and former Attorney General Jeff Sessions issued the decision Matter of A-B-, which restricts the ability of domestic and gang violence survivors to obtain asylum.

Writing for the 9th Circuit, Judge Jay Bybee, a nominee of Republican President George W. Bush, stated, “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.’

Collectively, all of the President’s measures undermine our country’s longstanding commitment to protect those fleeing violence and persecution. Since its inception, the United States has been a beacon for those pursuing freedom and protection against persecution. The President and Congress can ensure the integrity of our borders while still upholding these fundamental truths. They just need to do it thoughtfully and lawfully.

Politics, Mid-terms and the Immigrant Caravan

border patrol nogalesThe midterms are upon us. I don’t need to tell the readers of this blog how I hope it ends up.

I was struck recently by two quotes I saw within moments of each other about the “caravan” of immigrants trekking across Central America that are, according to President Trump, preparing to invade our southern border. On the one hand, there’s former Vice President Biden saying “[t]he press is not the enemy of the people. Immigrants are not animals. My hope and prayer is that all of our leaders will work to lower the temperature in our public dialogue, and I have faith that they will do that.” In contrast, Department of Homeland Security Secretary Kirstjen Nielsen recent stated that there is no “intention right now to shoot at people” from the Central American migrant caravan if they attempt to cross the United States border. I would suggest that Secretary Nielsen’s statement is not quite “lower[ing] the temperature in our public dialogue” that Vice President Biden was suggesting.

Days after I read the above quotes, and in stark contrast to the above quotes, I read a comment by Tarek El-Messidi, a Chicago-based activist who helped coordinate a fundraising effort by two Muslim organizations that raised about $200,000.00 to help victims and their families following the shooting massacre at the Tree of Life Synagogue in Pittsburgh. “Putting our religious differences or even your political differences aside, the core of all of us is that we have a shared humanity. … We really wanted to reach out as human beings to help.”

The politicization of our broken immigration system (and yes, it’s very broken and has been for way too long) is brutal to watch. Our political climate is toxic right now and we need more thoughtful approaches to some of the terribleness that we’re seeing (like Mr. El-Messidi’s response) to the massacre that took place in Pittsburgh.

The immigrants stuck in our broken immigration system, whether they are here lawfully or not, are paying a very big price. For example, in April 2018, President Trump implemented a “zero tolerance policy”, which as anyone even barely paying attention to the news knows resulted in the widespread and inhumane separation of parents and children arriving together at the United States southern border. The President’s policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including those who are lawfully allowed to seek political asylum in the United States (no matter where they enter).

During the President’s first two years, his administration has also implemented policies that are undermining the independence of our immigration judges and weakening due process in the immigration court system. The changes adopted by the Department of Justice over the last year include steps to impose numerical quotas on immigration judges and attempts to curtail procedural safeguards. Immigration courts play an important role in affording noncitizens an opportunity to present claims for relief and stay in the United States. The administration’s changes threaten the integrity of these courts.

There have been other issues too, including among many others, the Trump administration’s efforts to rescind DACA relief for Dreamers, congressional efforts to curb legal immigration, and of course, who can forget the Travel Ban?

More recently, along with the ridiculous rhetoric in connection with the caravan, are the President’s claims that he will end birthright citizenship by means of Executive Order, vows to hold undocumented immigrants in detention until they could be deported, and to block asylum seekers from claiming asylum if they are caught crossing the border outside of legal ports of entry. Oh, and lest I forget, the President has a plan to send thousands upon thousands of our military personnel to save the country from the “bad hombres” and “Middle Easterners” in the caravan preparing to attack our southern border.

Please, make him stop.

I don’t know who’s in the caravan, but the data (i.e., the facts and not the fake news) does not support any of the President’s statements that these individuals are “bad hombres” or even “Middle Easterners”. More than likely, these individuals are leaving their home countries in search of a better life (i.e., seeking refuge from political violence in Honduras where the caravan originated), just like our ancestors did when they left Europe and arrived on Ellis Island. We welcomed them then. We should do so now.

Recently, in a rambling and pretty much unintelligible speech from the White House, which was as always filled with lies and falsehoods, the President once again politicized the immigration debate. He once again chose politics instead of offering real solutions, when he announced plans to rewrite U.S. asylum law and procedures and to construct tent cities where families and asylum seekers could be detained for years.

Not surprisingly, as with any proposal that the President has offered mere days before the midterms, details of the plan are conspicuously absent, but instead will be forthcoming after the election. Of course they will. Just a little more red meat for his base. Please, make him stop.

 

[1] DACA stands for Consideration of Deferred Action for Childhood Arrivals.

[1] The President claimed that only 3 percent of asylum seekers show up for immigration court proceedings when the Department of Homeland Security’s own numbers show that the vast majority appear for their scheduled hearing.

 

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