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President Uses Executive Power to Change Asylum Law Duly Enacted by Congress

 

Today, the President issued a proclamation, and his Departments of Justice and Homeland Security issued a joint emergency regulation, that are insidiously designed to unlawfully deprive asylum protection to people who do not arrive at official border checkpoints, which they are entitled to do under the law.  The President is deceptively using the shrinking group of children and their parents called the “Caravan” to manufacture a crisis to, once again, justify his usurpation of Congressional authority to further gut asylum protections for Central Americans fleeing violence. Below are statements from Ur Jaddou and David Leopold in response to today’s actions:

Ur Jaddou, Director of DHS Watch, and former USCIS Chief Counsel, said:  

In the weeks leading up to the election, the President manufactured a national security crisis of the shrinking and slow-moving group of children and their parents fleeing violence in Central America. To respond to that manufactured crisis not based in fact, the President issued a proclamation today, while his Departments of Justice and Homeland Security issued a joint regulation, to attempt to cut off asylum for people who do not arrive at official border checkpoints, which they are entitled to do under the law.  But even with the manufactured crisis, these actions clearly violate the law enacted by Congress.

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:

Once again, the President is attempting to use executive power to usurp the Constitutional power of Congress to enact the law.  The President and his administration are attempting to make an end run around Congress.

Here’s how the scheme works:

  1. Manufacture a national security crisis.
    Weeks before the election, the President was busy making up alarming claims about the group of children and parents fleeing violence in Central America – otherwise known as the caravan – that even he noted were not based in fact.  Calling this group an “invasion,” he sent the U.S. military to the border days before the midterm election. But the facts show that annual border crossings are still lower than they were in the 1990’s and the early 2000s. Furthermore, experts have noted that groups of migrants are not new for the U.S., nor is mass migration.  While the President was ginning up a crisis and sending more troops to the border than are currently serving in Afghanistan, the migrant caravan was weeks or even months away from the U.S. border.
  2. Issue an emergency regulation to cut off asylum as a response to the manufactured crisis.
    In tandem with the Presidential Proclamation, the Departments of Justice and Homeland Security issued a joint emergency regulation barring individuals from applying for asylum in the U.S. if they enter the U.S. other than at a designated border checkpoint. The legally suspect regulation is purportedly based on the administration’s statutory authority to set limits and conditions on asylum applications “consistent” with the law.  The problem for the administration is that barring asylum claims for people who are in the U.S. because they entered between border checkpoints directly contradicts another provision of the asylum statute which clearly provides that people may apply for asylum in the U.S. regardless of how they get here and regardless of whether or not they arrive at a designated border checkpoint.
  3. Exercise extraordinary authority generally reserved for emergencies by issuing a Presidential proclamation barring entry of migrants.
    To get around clear legal issues with the emergency regulation, the President exercised extraordinary authority generally reserved for emergencies to shroud his unlawful regulation in the spectre of national security, hoping this could save his suspect regulation from legal scrutiny.  But it won’t. Only Congress has the power to make the laws and Congress has clearly spoken: people may seek asylum “whether or not at a designated port of arrival.”  No regulation can change that, even one that is shrouded in the veil of a Presidential proclamation falsely claiming a national security crisis.