Donald Trump Posts Proclamation Barring Illegal Migrants from Full Asylum

Asylum
AP Photo/Susan Walsh
Neil Munro

President Donald Trump has issued his formal proclamation barring economic migrants who try to sneak across the U.S. border from being allowed to apply for full asylum.

The announcement is intended to help block the impending caravan of Honduran migrants, and it says:

“The entry of any alien into the United States across the international boundary between the United States and Mexico is hereby suspended and limited … this proclamation shall not apply to any alien who enters the United States at a port of entry and properly presents for inspection, or to any lawful permanent resident of the United States.

The proclamation policy is being paired with new rules which say that the growing number migrants caught crossing the border will be only allowed to file for a limited amnesty, dubbed a “withholding of removal.”

This “withholding of removal” process eases deportations, it does not provide a path to green cards, and it raises the bar for migrants to win their cases. For example, illegal migrants will have to show they have a “reasonable fear” of persecution if they are refused entry, not merely an easy-to-pass “credible fear” test. In fiscal 2018, almost 400,000 migrants were caught crossing the border. 

The policy does not fix other border problems, such as the easy-asylum rules set by Congress for people who apply at the formal “ports of entry” along the border. Many of the caravan migrants — especially those bringing children — are expected to apply for full asylum at the ports of entry. 

In the preamble to the proclamation, Trump said: 

The United States has a long and proud history of offering protection to aliens who are fleeing persecution and torture and who qualify under the standards articulated in our immigration laws, including through our asylum system and the Refugee Admissions Program.  But our system is being overwhelmed by migration through our southern border.  Crossing the border to avoid detection and then, if apprehended, claiming a fear of persecution is in too many instances an avenue to near-automatic release into the interior of the United States.  Once released, such aliens are very difficult to remove.

The new proclamation-and-withholding package is part of a larger strategy which uses a series of regulatory changes to gradually shrink the border-wall loopholes which are being held open by pro-migration Democrats and business-first Republicans in Congress.

For example, officials are pushing forward with a plan to close the 2015 Flores loophole which allows economic migrants who bring children to be released into the U.S. job market after just 20 days of detection — or well before officials can complete the 40-day asylum-adjudication process. 

Trump has also said he expects to build “tent cities” on the border. The likely purpose it to prevent the release of migrants into the labor market while officials quickly process and deport economic migrants.

AG Sessions has raised the bar for passing the credible fear tests and getting a judicial approval of an asylum request.  

At the border, officials are also forcing migrants to wait in Mexico as border officials process a reasonable number of claims each day. This process, dubbed “metering,” prevents a rush of migrants from overwhelming the border process and then triggering the catch-and-release process. The metering process also keeps migrants in Mexico, so preventing them from filing lawsuits in U.S. courts to bypass border safeguards. The process also allows border stations to conduct normal procedures, such as checking visitors and trucks for potential crimes, such as drug smuggling. 

All of these policies threaten the labor-trafficking cartels because they may make migration economically unaffordable to poor migrants. In contrast, the current catch-and-release rules allow migrants to walk through the border barriers and into U.S jobs, so providing cheap labor for U.S businesses, cheap services for wealthy Americans and lucrative smuggling payments back to the cartels. 

The cartels are expected to change their labor-trafficking strategies in response t Trump’s proclamation. 

The quickest response is expected from pro-migration legal groups in the United States, such as the ACLU. For example, the caravan migrants are heading to the California border, ensuring their legal claims will be reviewed by the very pro-migration judges in the 9th Circuit Court of Appeals. In contrast, migrants who cross the Texas border have their claims heard by 5th Circuit Court of Appeals. 

Congress is also expected to react by minimizing Trump’s funding for border enforcement. For example, the GOP-controlled House and Senate have already rejected administration requests to fund 50,000 detention spaces for migrants. The House and Senate have also rejected requests for extra funding to hire more border guards and enforcement agents.

Business-first and pro-migration legislators may unite this December to pressure Trump into accepting a swap that gives him a no-reform border-wall in exchange for a no-strings DACA-plus amnesty. 

Also, Congress may use the lame-duck session in December to use the funding bill to sneak more loopholes into the border laws. For example, in July, Kansas Rep. Kevin Yoder added a measure to the 2019 spending plan that would indirectly enforce catch-and-release rules by barring border officials from sheltering children is different locations from detained parents. The plan is unlikely to be included in any final law, in part, because Yoder lost his election campaign. 

The proclamation includes a long preamble where Trump makes his political and legal case in support of the new rules: 

The United States expects the arrival at the border between the United States and Mexico (southern border) of a substantial number of aliens primarily from Central America who appear to have no lawful basis for admission into our country.  They are traveling in large, organized groups through Mexico and reportedly intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit.  Many entered Mexico unlawfully — some with violence — and have rejected opportunities to apply for asylum and benefits in Mexico.  The arrival of large numbers of aliens will contribute to the overloading of our immigration and asylum system and to the release of thousands of aliens into the interior of the United States.  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.

In recent weeks, an average of approximately 2,000 inadmissible aliens have entered each day at our southern border.  In Fiscal Year 2018 overall, 124,511 aliens were found inadmissible at ports of entry on the southern border, while 396,579 aliens were apprehended entering the United States unlawfully between such ports of entry.  The great number of aliens who cross unlawfully into the United States through the southern border consumes tremendous resources as the Government seeks to surveil, apprehend, screen, process, and detain them.

Aliens who enter the United States unlawfully or without proper documentation and are subject to expedited removal may avoid being promptly removed by demonstrating, during an initial screening process, a credible fear of persecution or torture.  Approximately 2 decades ago, most aliens deemed inadmissible at a port of entry or apprehended after unlawfully entering the United States through the southern border were single adults who were promptly returned to Mexico, and very few asserted a fear of return.  Since then, however, there has been a massive increase in fear-of-persecution or torture claims by aliens who enter the United States through the southern border.  The vast majority of such aliens are found to satisfy the credible-fear threshold, although only a fraction of the claimants whose claims are adjudicated ultimately qualify for asylum or other protection.  Aliens found to have a credible fear are often released into the interior of the United States, as a result of a lack of detention space and a variety of other legal and practical difficulties, pending adjudication of their claims in a full removal proceeding in immigration court.  The immigration adjudication process often takes years to complete because of the growing volume of claims and because of the need to expedite proceedings for detained aliens.  During that time, many released aliens fail to appear for hearings, do not comply with subsequent orders of removal, or are difficult to locate and remove.

Members of family units pose particular challenges.  The Federal Government lacks sufficient facilities to house families together.  Virtually all members of family units who enter the United States through the southern border, unlawfully or without proper documentation, and that are found to have a credible fear of persecution, are thus released into the United States.  Against this backdrop of near-assurance of release, the number of such aliens traveling as family units who enter through the southern border and claim a credible fear of persecution has greatly increased.  And large numbers of family units decide to make the dangerous and unlawful border crossing with their children.

The United States has a long and proud history of offering protection to aliens who are fleeing persecution and torture and who qualify under the standards articulated in our immigration laws, including through our asylum system and the Refugee Admissions Program.  But our system is being overwhelmed by migration through our southern border.  Crossing the border to avoid detection and then, if apprehended, claiming a fear of persecution is in too many instances an avenue to near-automatic release into the interior of the United States.  Once released, such aliens are very difficult to remove.  An additional influx of large groups of aliens arriving at once through the southern border would add tremendous strain to an already taxed system, especially if they avoid orderly processing by unlawfully crossing the southern border.

The entry of large numbers of aliens into the United States unlawfully between ports of entry on the southern border is contrary to the national interest, and our law has long recognized that aliens who seek to lawfully enter the United States must do so at ports of entry.  Unlawful entry puts lives of both law enforcement and aliens at risk.  By contrast, entry at ports of entry at the southern border allows for orderly processing, which enables the efficient deployment of law enforcement resources across our vast southern border.

Failing to take immediate action to stem the mass migration the United States is currently experiencing and anticipating would only encourage additional mass unlawful migration and further overwhelming of the system.

Other presidents have taken strong action to prevent mass migration.  In Proclamation 4865 of September 29, 1981 (High Seas Interdiction of Illegal Aliens), in response to an influx of Haitian nationals traveling to the United States by sea, President Reagan suspended the entry of undocumented aliens from the high seas and ordered the Coast Guard to intercept such aliens before they reached United States shores and to return them to their point of origin.  In Executive Order 12807 of May 24, 1992 (Interdiction of Illegal Aliens), in response to a dramatic increase in the unlawful mass migration of Haitian nationals to the United States, President Bush ordered additional measures to interdict such Haitian nationals and return them to their home country.  The Supreme Court upheld the legality of those measures in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

I am similarly acting to suspend, for a limited period, the entry of certain aliens in order to address the problem of large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation.  I am tailoring the suspension to channel these aliens to ports of entry, so that, if they enter the United States, they do so in an orderly and controlled manner instead of unlawfully.  Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.  In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens — and all others arriving at our ports of entry — as efficiently as possible.

But aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum under the regulation promulgated by the Attorney General and the Secretary of Homeland Security that became effective earlier today.  Those aliens may, however, still seek other forms of protection from persecution or torture.  In addition, this limited suspension will facilitate ongoing negotiations with Mexico and other countries regarding appropriate cooperative arrangements to prevent unlawful mass migration to the United States through the southern border.  Thus, this proclamation is also necessary to manage and conduct the foreign affairs of the United States effectively.

The formal presidential announcement says: 

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(f) and 1185(a), respectively) hereby find that, absent the measures set forth in this proclamation, the entry into the United States of persons described in section 1 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.

Sec. 2.  Scope and Implementation of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who enter the United States after the date of this proclamation.

(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to any alien who enters the United States at a port of entry and properly presents for inspection, or to any lawful permanent resident of the United States.

…

IN WITNESS WHEREOF, I have hereunto set my hand this
ninth day of November, in the year of our Lord two thousand eighteen, and of the Independence of the United States of America the two hundred and forty-third.

DONALD J. TRUMP

Business groups and Democrats tout skewed polls which prod Americans to declare support for migrants and for the claim that the United States is government-expanding “Nation of [employed] Immigrants,” not a nation of self-ruling American citizens.

The alternative “priority or fairness” polls — plus the 2016 election — show that voters in the polling booth put a much higher priority on helping their families, neighbors, and fellow nationals get decent jobs in a high-tech, high-immigration, low-wage economy.

Overall, Washington’s economic policy of using migration to boost economic growth shifts wealth from young people towards older people by flooding the market with cheap white-collar and blue-collar foreign labor. That flood of outside labor spikes profits and Wall Street values by cutting salaries for manual and skilled labor offered by blue-collar and white-collar employees.

The policy also drives up real estate prices, widens wealth-gaps, reduces high-tech investment, increases state and local tax burdens, hurts kids’ schools and college education, pushes Americans away from high-tech careers, and sidelined millions of marginalized Americans and their families, including many who are now struggling with opioid addictions.

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