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Trump’s Possible Order to Close Southern Border ‘Defies Common Sense,’ Legal Experts Say (Updated)

Tina Vasquez

“Asylum seekers are not threats to national security; their security was threatened and they are doing what any of us would do when your life is in danger,” said a former attorney adviser for the U.S. Department of Justice.

UPDATE, November 9, 5:31 p.m.: President Trump on Thursday enacted a rule that bars migrants from seeking asylum if they enter the United States without authorization, the New York Times reports.

President Donald Trump is reportedly considering an executive order that would bar any migrants from seeking asylum at the U.S.-Mexico border, a decision that would violate existing asylum laws and agreements and far exceed his authority as president, according to legal experts who spoke to Rewire.News.

The White House has not released any details of the possible plan, which it ultimately could pass over, but individuals briefed on the proposal told the New York Times and the San Francisco Chronicle that Trump is considering three options. He may limit asylum applications at the southern border from certain countries, block Central Americans from even being able to cross the border into the United States, and bar individuals who’ve entered the country without legal permission from applying for asylum.

News of the possible executive order comes as a migrant caravan, which began its journey from Honduras on October 13, is expected to reach the southern border in the coming weeks. Originally slated to be several hundred asylum seekers, the caravan reportedly swelled to nearly 7,000 at its peak, with deportees reportedly joining as well. Maureen Meyer, the director for Mexico and migrant rights at the Washington Office on Latin America (WOLA), told Rewire.News the most recent numbers her office received showed there were more than 1,500 women and 1,700 children as of last weekend.

Sarah Pierce, a former immigration attorney and a current policy analyst for the Migration Policy Institute’s U.S. Immigration Policy Program, told Rewire.News that to her knowledge, apart from the Trump administration’s Muslim ban, no president has ever taken such action, and this includes at the southern border. 

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“The administration is doing everything in its power to prevent members of the migrant caravan from coming into the United States, which really gets to the president’s underlying promise that he would seal the southern border,” Pierce said. “But if the president chooses to move forward with what has been reported [by the media], it would be illegal.”

Migration is not against the law. Members of the caravan who have left their country to apply for asylum in another country have broken no laws and under international law, Pierce said, the United States cannot punish migrants for seeking asylum.

Unlike refugees status, migrants can only apply for asylum on U.S. soil. According to U.S. and international law, a migrant who enters a port of entry to seek asylum should not, under any circumstances, be denied the right to undergo the years-long process. Applying, however, does not guarantee the U.S. government will grant the status.

The American Immigration Council, along with the Center for Constitutional Rights and Latham and Watkins, LLP are currently litigating a related court case. Al Otro Lado, Inc. v. Nielsen is a class action lawsuit challenging Customs and Border Protection’s (CBP) unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border since Trump took office. According to the plaintiffs, CBP uses misrepresentation, threats, intimidation, verbal abuse, physical force, and coercion to deny asylum seekers the opportunity to pursue their claims. Central to the case has been something called “metering,” which Pierce described as CBP essentially holding off asylum seekers at ports of entry, telling the migrants they were only accepting a certain number of asylum seekers a day and to “come back later.”

A recent Amnesty International report revealed that the Trump administration’s immigration policies at the U.S.-Mexico border are tantamount to “torture” and have subjected already vulnerable asylum seekers, including LGBTQ migrants, to “catastrophic harm.”

This combined with the administration’s hostile rhetoric toward migrants has created a fraught situation for those seeking asylum. Earlier this week, Trump said the caravan includes possible terrorists while other prominent right-wing voices have posted old, unrelated images on social media of a beaten police officer and groups of brown men to suggest the caravan is comprised of violent men.

Meyer said that while this anti-immigrant rhetoric may influence public opinions about immigrants, it does nothing to actually deter people from migrating, neither do harsh polices like “zero tolerance.”

“If Trump had a broader understanding of the fact that there are thousands of people fleeing their countries of origin because of violence, persecution, and lack of economic opportunity, he would understand that,” said Meyer. “What we’ve seen the last few months with these cruel policies implemented to deter people is that nothing, including family separation, will stop desperate people who are trying to save their own lives and the lives of their families.”

Denise Bell, a researcher for refugee and migrant rights at Amnesty International, told Rewire.News on Friday that Trump’s potential executive action would represent yet another blow to some of the world’s most vulnerable communities, one that “defies common sense and betrays the nation’s purported values.”

“Asylum seekers are not threats to national security; their security was threatened and they are doing what any of us would do when your life is in danger,” Bell told Rewire.News. “To characterize any of this as ‘illegal’ or as taking advantage of ‘loopholes’ is false.”

Bell spoke to Rewire.News after returning from the Trump administration’s tent city in Tornillo, Texas, where more than 1,000 migrant children, a bulk of whom are asylum seekers, are being detained “for no reason.” Prior to joining Amnesty, Bell served at the U.S. Department of Justice, where she was an attorney adviser on the New York Immigration Court from 2013 to 2016. “My job was to draft immigration opinions for judges; I know the Immigration and Nationality Act,” she said. “What I want to make very clear is that the United States used to believe so strongly in international human rights law, in the right to seek asylum, they made it into U.S. law in the Refugee Act of 1980. This isn’t just codified in international law or asylum law, the right to seek asylum is U.S. law.”

In addition to the possible executive order, the Trump administration announced plans to deploy roughly 800 members of the U.S. military to the border, though it remains to be seen what role they will play. A federal law does bar active-duty military from enforcing domestic law, including immigration laws, without congressional approval. In other words, any active-duty military troops deployed to the southern border cannot engage in immigration enforcement.

According to the New York Times, Secretary of Defense Jim Mattis may send “engineers to help with the construction of tents and fencing, doctors for medical support, and potentially some personnel to operate drones along the border.”

Migration numbers are at a historic low and, according to Adam Isacson, director for defense oversight at WOLA, “There’s no reason why soldiers should be patrolling the border when they aren’t trained to deal with asylum seekers.”

“This would set a very dangerous precedent and I would have serious concerns about the safety of migrants,” Meyer said.

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