White House blows up the asylum process
July 17, 2019
As the rule goes into effect, there is confusion about what this means. Apparently there was little direction given to border agents about how to implement the rule, and so a day in, little has actually changed. The rule was immediately challenged in court. From NBC News:
The ACLU was joined by the Southern Poverty Law Center and the Center for Constitutional Rights in the lawsuit, which was filed in the U.S. District Court for the Northern District of California. The suit was filed on behalf of immigrant rights groups — the East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and the Central American Resource Center in Los Angeles.
"This is the latest — and deeply dangerous — effort by the Trump administration to inflict maximal cruelty on vulnerable people fleeing desperate conditions for safety here," Baher Azmy, the legal director for the Center for Constitutional Rights, said in the statement.
The lawsuit is asking for a declaration "that the interim final rule is unlawful and invalid," as well as a preliminary and permanent injunction stopping its implementation and enforcement.
Trump’s administration has been working to get an agreement with Mexico as a “safe third country.” Such a designation would require asylum seekers to first request protection in Mexico before attempting to get asylum in the U.S. Mexico’s current administration has made clear they cannot move forward on such an agreement without approval from the legislature, something that may not happen. The administration was also pressing Guatemala’s government to enter into a safe third party agreement - despite the fact that Guatemala is the country many people are fleeing. That effort fell apart over the weekend. From the New Yorker:
On Sunday afternoon, the Guatemalan government issued a statement cancelling a highly anticipated meeting, scheduled for Monday, in Washington, between Jimmy Morales, the President of Guatemala, and Donald Trump. The subject of the meeting was a deal between the two countries that would allow the U.S. government to begin sending asylum seekers to Guatemala under the terms of a so-called safe-third-country agreement. The idea was to outsource part of the American asylum system to Guatemala, despite the fact that many of the Central-American asylum seekers arriving at the U.S. border are Guatemalans fleeing poverty, hunger, and violence in their home country. “Opposition to the deal was widespread in Guatemala,” Lucrecia Hernández Mack, a newly elected member of the Guatemalan congress, told me. “Morales was acting alone.” Over the weekend, the country’s Constitutional Court was considering three separate petitions filed in an attempt to block the deal; on Sunday night, a few hours after Morales cancelled his plans for Washington, citing the pending legal case, the judges issued their ruling: Morales was forbidden from negotiating the deal on his own, without consulting the Guatemalan congress. According to a member of the Trump Administration, “if the injunctions didn’t happen in Guatemala, then the deal would have been signed on Monday.”
Trump’s new asylum rule seems to be a response to the failure to secure these agreements with Mexico and Guatemala. Unable to outsource asylum processing, he simply ended it. The impact of this will ripple out to Mexico and into Central America as people will be increasingly denied entry into the United States. If arrested inside the United States, many may be sent back into Mexico, something that has already occurred to 15,000 or more Central American asylum seekers.
It is hard to imagine this rule standing up to a court review. It violates existing U.S. law as well as international legal obligations under the UN Convention on Refugees - which the United States did not sign onto until 1967 revisions extending protection to asylum seekers. From the Texas Tribune:
Tom Jawetz, the vice president of immigration policy at the Center for American Progress, said that's only part of the reason the rule "violates the statutory scheme laid out by Congress and is illegal, plain and simple."
"Congress has explicitly provided only two circumstances in which time spent in a third country could justify barring a person from receiving asylum: if the United States has entered into a 'safe third country' agreement with that country or if the person firmly resettled in that country," he said in a written statement. "The United States does not have a safe third country agreement with Mexico and its neighboring countries — and none of those countries credibly could be called 'safe.' Second, merely passing through another country cannot and does not constitute firm resettlement in that country."
With this latest move, Trump is side stepping the U.S. congress, and, in effect, the legislative process in Mexico and Guatemala. He’s done this without any period of public comment on the proposed rule, and, as is par for the course, with no advanced directives to the people meant to enforce the rule, creating confusion about how this is to actually roll out. It is the kind of bullying approach to politics we’ve come to expect from this administration - never seek compromise, just blow up the system and see what happens once the courts and advocates seek to repair it. He gets his “win” for taking action with his base and others pick up the pieces. Along the way, tens of thousands of lives are wrecked. Congress, where are you?