By Attorney Gail Seeram
The Trump administration enacted an interim immigration rule effective midnight on November 9, 2018, and for the next 90 days, that invoke national security powers to prevent asylum seekers from entering the U.S. and prevents them from applying for asylum if they entered without paper (or valid visas).
The strategy appears to be aimed at preventing members of a Central American caravan from entering the U.S. The president will use the same authority that he relied upon to ban travel from mostly Muslim countries just days after he became President. Trump is trying to use his executive discretion to override a specific thing that Congress wrote into the law.
The text of the Immigration and Nationality Act specifies that people may apply for asylum “whether or not” they enter the US at a port of entry. When someone enters the U.S., if he or she has a “credible fear” of persecution (in other words, that there’s a significant possibility they would be persecuted if deported based on her race, nationality, religion, political opinion, or membership in a particular social group), then he or she is allowed to go before an immigration judge. This can take some time, so the person is released on bond and can be granted work authorization while awaiting their day in immigration court.
If he or she is ineligible for asylum but still has reason to fear persecution, he or she can receive a lesser form of protection — called withholding of removal — that allows him or her to stay in the US, but gives him or her no path to permanent legal status.
Trump’s interim rule or executive order will force asylum seekers to choose between having to wait for weeks or longer at overloaded ports of entry — unless they’re prevented by smugglers from coming to a port at all — and risking near-immediate deportation by crossing illegally and turning themselves in to Border Patrol.
It is near-certain that the policy will be subject to a lawsuit in the immediate future. It is extremely likely that the policy will be put on hold by a federal judge ruling against the administration soon after it becomes effective.
Attorney Gail Seeram, LL.M., J.D., BBA
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