The president is also flouting global norms. As the U.S. Supreme Court itself has recognized, “[O]ne of Congress’ primary purposes [with the 1980 Refugee Act] was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, to which the United States acceded in 1968.”
What could justify the administration’s decision to, in effect, unilaterally rewrite asylum law?
The president’s lawyers are mainly invoking Section 212(f) of the Immigration and Nationality Act, which gives the executive broad authority to suspend or restrict “the entry of any aliens or any class of aliens” if their entry “would be detrimental to the interests of the United States.” (They invoked the same section in defense of the travel ban.)
But the administration has provided no basis for the assertion that keeping asylum seekers out is in the national interest. At least, no official basis. On social media and on television, President Trump and members of his administration have suggested that the Central American migrants headed to the border are violent criminals and that the “caravan” has been infiltrated by Middle Eastern terrorists.
Adam Serwer: Trump’s caravan hysteria led to this.
The Trump administration makes asylum seem like an immigration-law loophole. In truth, it’s not at all easy to obtain. Under the expedited removal process, in place since 1996, individuals arriving in the country without proper documentation or with fraudulent documents can be returned immediately to their countries of origin, without court hearings, unless they can establish a “credible” fear of persecution or torture. In general, asylum applicants must prove that they have suffered or have reason to fear serious harm on account of their race, religion, nationality, political opinion, or membership in a particular social group, and that their home country cannot or will not offer them protection. In 2016, the grant rate for asylum cases in immigration court was about 43 percent.
Moreover, the asylum system already has built-in safeguards to—how shall I put this?—protect the national interest. People who have provided material support to terrorism, who have been convicted of serious crimes in the U.S., or who have committed serious nonpolitical crimes outside the U.S., as well as people who have persecuted others or have residency in a third country, are all barred from asylum. Recent decisions by the Board of Immigration Appeals have defined these categories broadly; for example, one applicant who was forced to cook and clean for a guerrilla group against her will in 1990 was barred from asylum this summer.
Indeed, the U.S. Commission on International Religious Freedom found in a recent report that the current system is already too rigid, too impersonal, and too quick to deny claims. If the administration wants to make the system stronger, it should focus on hiring more asylum officers and immigration judges to tackle the backlog.
The administration’s bluster about chaos and confusion at the border and the threats posed by asylum seekers is just that—bluster. An overly deferential judiciary might buy its arguments, but a fair one could not.