Update Nov. 9, 12pm EST: The Trump administration will strip immigrants who come to the US illegally of their right to request asylum for at least the next three months under a new executive order.
The order, which Donald Trump signed Nov. 9, is meant to address “mass migration” through the US-Mexico border. It is the president’s latest attempt to stop “caravans” of Central American immigrants traveling through Mexico en route to the US. It does not apply to immigrant children traveling alone.
It follows a new rule issued by the Departments of Homeland Security and Justice on Thursday, which stipulates that immigrants will only be eligible to apply for asylum at ports of entry; asylum seekers who cross the border illegally will only be eligible for lesser protections that are generally harder to obtain.
Shrinking the number of asylum seekers
The White House has been brainstorming about different ways to stop a growing number of families and children from that region from requesting asylum at the US border. Under Jeff Sessions, the Department of Justice has already narrowed the criteria to apply. The administration’s failed family-separation policy earlier this year was another effort to dissuade asylum-seekers.
Requesting asylum is legal under US and international laws, regardless of whether an applicant enters the country legally or illegally. But senior White House officials claim the law gives the president broad authority to bar “all aliens or any class of aliens” if he deems them a threat to the country. This is how the Trump put it in his executive order:
The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders. I therefore must take immediate action to protect the national interest, and to maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum.
Trump’s administration used the same rationale to justify its travel ban on citizens from several majority-Muslim countries, which was accepted by the Supreme Court after several iterations and amendments.
Administration officials say the goal of the new rule is to reroute asylum seekers to ports of entry, so their claims can be more quickly processed, and deserving asylum seekers can get protection sooner. This is hard to do currently, they say, because of a barrage of applications by people who ultimately get denied.
At the moment, US Border Patrol agents who come across asylum seekers who enter the country illegally refer them to asylum officers for screening; if their case has merit, they are sent to immigration courts to make the final decision. It’s a process that can take years.
It’s unclear exactly how the new rule would speed it up, but it could transfer immigrants’ waiting time south of the border. Ports of entry have already been limiting the number of people they take in, saying they don’t have enough capacity.
Immigrant advocates will likely sue
Like many other Trumpian efforts to curb immigration, this one too will likely be challenged in court. Just a few minutes after its publication, immigration lawyers were pointing out the exact passages of the law it contradicts.
In fact, immigrant advocates already sued the Trump administration for turning away asylum seekers at ports of entry, alleging that it violates immigration laws and the Fifth Amendment’s due process clause. The case, which was filed in July of 2017, is ongoing.
This story was updated Nov. 9 to include details from an executive order signed by Donald Trump that day.