In response to a much over-hyped caravan of migrants slowly trekking north through Mexico, the Trump administration announced new rules to block people from applying for asylum if they cross between the ports of entry along the Southern border. The rules take effect immediately, setting the stage for an utterly avoidable crisis that will put people’s lives at risk.
The asylum ban was made through two bureaucratic steps. First, the Department of Homeland Security and the Department of Justice jointly published an interim regulation that creates a new bar to asylum.
President Trump then issued an accompanying proclamation that applies to anyone who has entered the United States along the Southern border between the ports of entry. Those who defy the proclamation will be denied the opportunity to seek asylum. The change does not apply to individuals who enter between ports of entry on the Northern border or to unaccompanied children who enter without a parent.
This asylum ban is illegal.
U.S. law clearly states that any person who arrives in the United States—whether or not at a port of entry—can apply for asylum.
Many individuals who enter between the ports of entry and seek asylum do so because their alternatives are limited. Some at imminent risk of grave harm are desperate to get protection from the closest possible place along the U.S. border—which may not be a port of entry.
Although the proclamation directs asylum seekers to ports of entry, many who have tried to approach an official port of entry have been turned away or told that the port is full. This generates weeks-long waits in precarious conditions on the Mexico side of the border. Those who cannot afford the risk of waiting often cross between the ports and immediately present themselves to a DHS official to ask for asylum.
Within hours of the proclamation’s announcement, advocates challenged the government’s issuance of the rules without providing the public advanced notice and an opportunity to comment on it, as well as the ways in which the asylum ban violates the clear letter of the law.
It is legal to seek asylum. Congress clearly established that it is legal to do so between the ports of entry. No stroke of the presidential pen can change that.
Instead of restricting asylum and placing people’s lives at risk, we have to strengthen pathways that allow for orderly migration and protection. Robust refugee processing will allow those fearing for their lives to apply from abroad and improved capacity of the Mexican asylum system will expand the availability of options.
Until root causes of violence and instability that make people flee are fully addressed, we should expect that deterrence measures like these will not prevent people at risk from seeking safe haven.