Well, Donald Trump took his quixotic battle to protect America from a non-existent “invasion” up another couple of notches on Thursday, rolling out a sweeping directive that essentially allows the President to deny asylum to anybody and everybody at his discretion.
The new asylum rule was announced on Thursday by Department of Homeland Security Secretary Kirstjen Nielsen (who isn’t exactly what one would call “popular”) and newly-minted acting Attorney General Matthew Whitaker, who is under enormous scrutiny less than two days into his new job over his long history of comments which suggest he will move quickly to shut down or otherwise curtail the Robert Mueller probe.
Here’s the statement from the DoJ:
Consistent with our immigration laws, the President has the broad authority to suspend or restrict the entry of aliens into the United States if he determines it to be in the national interest to do so. Today’s rule applies this important principle to aliens who violate such a suspension or restriction regarding the southern border imposed by the President by invoking an express authority provided by Congress to restrict eligibility for asylum. Our asylum system is overwhelmed with too many meritless asylum claims from aliens who place a tremendous burden on our resources, preventing us from being able to expeditiously grant asylum to those who truly deserve it. Today, we are using the authority granted to us by Congress to bar aliens who violate a Presidential suspension of entry or other restriction from asylum eligibility.
In other words, Trump is using the same executive authority he trotted out in defense of his Muslim ban to effectively bar entry to the U.S. for Central American immigrants or, as the administration puts it, “channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner.”
Under the new interim rule (embedded in full below), asylum must be claimed at a port of entry which means that once Trump issues an official proclamation (likely on Friday), anyone who enters the country and does not claim asylum at a designated port of arrival, will be automatically denied asylum should they make a claim later. Or at least that’s what it sounds like. Mercifully, this will not be retroactive.
Trump is also attempting to alter the “credible fear” criteria. As Bloomberg reminds you, “people who claim asylum are now interviewed by U.S. officials to assess whether they have a ‘credible fear’ of being returned to their home countries [and] if so, they are placed in immigration proceedings.” They are subsequently free to go in lieu of a court date. Now, some immigrants may be subject to a higher bar. To wit, from the order:
The Departments anticipate that a large number of aliens who would be subject to a proclamation-based ineligibility bar would be subject to expedited-removal proceedings. Accordingly, this rule ensures that asylum officers and immigration judges account for such aliens’ ineligibility for asylum within the expedited-removal process, so that aliens subject to such a bar will be processed swiftly. Furthermore, the rule continues to afford protection from removal for individuals who establish that they are more likely than not to be persecuted or tortured in the country of removal. Aliens rendered ineligible for asylum by this interim rule and who are referred for an interview in the expedited-removal process are still eligible to seek withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or protections under the regulations issued under the authority of the implementing legislation regarding Article 3 of the CAT. Such aliens could pursue such claims in proceedings before an immigration judge under section 240 of the INA, 8 U.S.C. 1229a, if they establish a reasonable fear of persecution or torture.
So, basically, if an immigrant runs afoul of this new rule and ends up being subject to “expedited-removal”, they will have to effectively prove that if they are sent back to their country or origin, they’re likely to be “tortured”. I’m no immigration judge, but it seems like that’s going to be pretty hard to “prove” definitively, especially as part of an expedited process.
Long story short, this will be challenged in court and Trump knows it. Earlier on Thursday, NBC reported that the administration is fully prepared for a legal battle and expects to win thanks in part to (guess who?!) Brett Kavanaugh. To wit:
The Trump administration expects to be sued over the draconian new immigration plan it unveiled Thursday afternoon, say two senior administration officials with knowledge of the discussions — but with Justice Brett Kavanaugh now on the Supreme Court, it expects to win.
According to the two senior officials, they think that with Kavanaugh in place, the Supreme Court will rule in their favor.
Kavanaugh, who took the spot of the more moderate Justice Anthony Kennedy on Oct. 6, is known for his conservative opinions that often side with the executive branch’s assertion of power.
There’s no other way to say this: America’s core values are being eroded on a daily basis, with this being just the latest example.
So much for “Give me your tired, your poor, your huddled masses.”