As a migrant caravan hundreds of miles away moves toward the United States, the Trump administration is weighing its options on trying to block entry to the United States and possibly narrow the category of individuals who can apply for asylum.
While the administration argues publicly that it wants to bolster US capabilities at the border, immigrant rights groups warn that if the government attempts to limit asylum seekers from receiving a fair hearing, they will rush to court.
The dispute, with no firm policy in place, comes in the shadow of the midterm elections and could prompt a massive legal battle.
Here’s a breakdown of exactly what legal issues might arise should the caravan reach the Mexico-US border and that order come into play.
Who has the right to bring an asylum claim?
Under the 1951 UN Refugee Convention and the 1980 US Refugee Act, individuals have a legal right to seek asylum whether at the US border, a port of entry or even from the interior of the country.
In order to qualify, an individual needs to prove past persecution or a well-founded fear of future persecution based on one of the following: race, nationality, religion, political opinions or membership in a particular social group.
This right is extended regardless of how an individual entered the country, but the individual has to be at least on the US border to have the legal right to bring the claim. Once an individual is apprehended at the border, and expresses a fear of returning to their country, they trigger what’s called a “credible fear” interview before a trained asylum officer, at which point the individual has to demonstrate a credible fear in order to avoid expeditious removal.
If the person establishes a credible fear, he or she is placed in proceedings before an immigration judge, and must then demonstrate eligibility for asylum.
Most individuals don’t have attorneys, and advocates for migrants say they may not be aware of their rights.
“This administration is intentionally undermining well-established procedures for safely vetting and reviewing asylum claims which is both illegal and flies in the face of our national traditions,” said Michelle Brane, director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
What is the Trump administration considering?
Bolstered by a win in the Supreme Court’s last term upholding the legality of the travel ban, the administration could once again rely on federal immigration law and argue that the President has broad authority when it comes to who enters the country.
Regarding the caravan, Homeland Security Secretary Kirstjen Nielsen said on Fox News last week that “if you don’t have a legal right to come to this country and you come as part of this caravan and you come in this country, you will be returned home.”
At this point, no one is quite sure how the administration might act. Immigrant rights groups are hearing of draft proposals that could specifically target those in the caravan, or more generalized regulations aimed at asylum protections.
The groups have heard rumors for months, for example, that the administration was going to introduce new asylum regulations in December. But in the last few days, some had heard there was a push to pull out one provision of those regulations and give the President authority to bar categories of asylum seekers from entering the United States.
A second step would be to implement that authority by issuing a presidential proclamation aimed at particular groups, for instance, those who are in the caravan or for all Central American nationals.
“The President would like to undertake these measures to bar people seeking protections, regardless of the facts that these steps are unlawful and unconstitutional,” said Jennifer Quigley of Human Rights First.
Quigley said that such proposals would violate the Refugee Act because it would amount to an end run around the asylum system created by the Refugee Act.
“The proposed rule would also violate the Constitution and deprive asylum seekers of essential due process protections,” she said.
The administration could argue, however, that the legal rationale could come from a different section of the Immigration and Naturalization Act that reads: “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.”
That was the legal rationale the administration relied upon when enforcing the so-called travel ban, and last term, Chief Justice John Roberts wrote that the ban fell “squarely within the scope of Presidential authority under the INA.”
According to experts there is little the United States can do – enforcement-wise – before the individuals reach the US border. In addition, the US does not have a so-called “safe third country agreement” with Mexico, which means the United States can’t tell an asylum seeker to turn around and apply in Mexico.
The US does have such an agreement with Canada.
Distinguishing a “caravan ban” from a “travel ban”
Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, who litigated one of the travel ban cases in the lower courts, said that the third version of the travel ban, the one which was upheld, had specific language within it saying it did not apply to those who had been granted asylum.
“Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with laws of the United States,” it stated.
“Even when this administration otherwise banned large numbers of Muslims, it explicitly provided that it was not taking away the right to apply for asylum,” said Jadwat. “But if the reports are correct, under this new plan, the administration would now target asylum and refuse to protect individuals who can prove that they will be persecuted – a breathtaking moral failure.”
Ira Mehlman, spokesman for the Federation for American Immigration Reform, believes the President and Congress has to move to defend against people who Mehlman believes are taking advantage of the US humanitarian policies.
“It has been widely reported by the media that most of the people in the caravan are coming to the United States for economic reasons, and that is not grounds for political asylum,” he said. “There are countless failing countries across the globe where there is a breakdown of civil society, which is obviously a very serious issue, but it is not political persecution.”
Tom Jawetz, vice president of immigration policy for the liberal Center for American Progress Action Fund, believes that the President’s real goal is to use the issue of immigration to score political points.
“To do that, he is targeting asylum seekers and women and children fleeing violence and persecution,” he said.
He expects litigation will begin immediately if the interim final rule is issued.