In the lead-up to the midterm elections, the caravan of Central Americans has dominated media attention. Unfortunately, media coverage often consists of images of the group, currently about 1,000 miles from the U.S. border and reportedly dwindling in size, as a threat to overrun our southern border. The President apparently relishes attention on the subject, seeking to juxtapose the pictures of the caravan with pictures of U.S. troops being sent to the border to await them for a confrontation, despite the fact that the military will have no legal authority to make any arrest or help in the processing of any applicant.
Beyond the military being sent and the constant rhetoric from the administration, The San Francisco Chronicle now reports that the Trump Administration is considering an executive action, purportedly backed by the same legal authority used for the travel ban, to limit or ban asylum for those arriving at the southern border from Central America.
A few points about the justification and legality of these actions are in order:
First, seeking asylum at the border is absolutely legal. Though many asylum seekers attempt to apply at ports of entry along the border, U.S. Customs and Border Protection agents have routinely been turning them away claiming that they did not have the space or capacity to process the applications. This has led to more people crossing the border unlawfully, not in an attempt to evade border agents, but rather with the intent of approaching them and requesting asylum as soon as they cross the border. Statute provides that “any alien who is physically present in the United States or who arrives in the United States [whether or not at a designated port of arrival…, irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a).
Second, the perception that the U.S. is overly generous in its asylee and refugee acceptance policies is just flat wrong. From 2012-2017, the United States ranked 50th in the world in acceptance rates as a share of population. Migration from Central America is driven by multiple factors, but the extreme levels of violence and inability of those governments to effectively combat gang rule. In short, many of those fleeing are doing so in fear for their lives.
Third, in an age of unprecedented resources being dedicated to border security, unlawful border crossings at our southern border remain at historic lows.
Fourth, no executive order can override our asylum obligations. As a signatory to the 1967 UN Protocol, the United States must provide protections to those who are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on protected grounds. Congress subsequently incorporated these obligations into U.S. statute. The President does not have the power, through executive actions, to undue these obligations. Any executive order to the contrary will be illegal and immediately challenged in court.
We are in no danger of being overrun by people claiming asylum at the southern border. That does not mean that caravans and migration, in general, do not present a challenge. But our answer to the challenge cannot be to debase ourselves with cruel policies of forcibly separating children from their parents or abandoning our post-World War II commitments to protect persecuted people fleeing for their lives. Rather, our country of over 325 million people should be able to reallocate resources in order to provide quick and fair processing of applicants, even a few thousand arriving at once, without compromising due process.
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