1. It is effective immediately.
Usually, an agency will issue a proposed rule and allow the public time to review the rule and submit comments in support of or challenging certain provisions of the rule. Broadly speaking, the agency must review those comments, and support the final rule with explanation and justifications in light of those comments.
The rule here is different. Because it is an interim final rule (IFR), it will become effective immediately upon publication (as of Nov. 9). To justify the use of an IFR, the agency must find that it has good cause to issue a final rule without first publishing a proposed rule.
Here, the Department of Homeland Security (DHS) is offering the public an opportunity to comment — until Jan. 8, 2019 — but there is no guarantee that the agency will alter the final rule before it is published in the Federal Register. During the comment period, the rule will remain in effect, unless disrupted by litigation.
2. The scope of the ban is based on the president’s proclamation issued on Friday.
The interim final rule in question here will govern eligibility for asylum and screening procedures for individuals that are subject to the presidential proclamation, issued on Nov. 9, that restricts the entry of certain asylum seekers along the southern border with Mexico.
According to the president’s proclamation, the ban only applies to potential asylum seekers who do not present at a port of entry and submit to inspection. Those who enter unlawfully — between ports of entry on the southern border — will be ineligible to be granted asylum, although they can still seek other protections from persecution, namely withholding of removal and protections provided under the Convention Against Torture.
That suspension and limitation will expire 90 days after the date of this proclamation (in other words, on Feb. 7, 2019).
3. Much of the justification provided is inaccurate.
Claim #1: Our asylum system is overwhelmed.
This is true. According to USCIS, as of July 26, 2018, there were 289,739 cases currently in the asylum backlog with filing dates before Feb. 1, 2018. The backlog of other immigration cases — like removal or deportation cases — nearly triples that number.
There’s been nearly a 1,700 percent increase in asylum claims over the past decade. But the increase in the number of asylum applicants is due to a number of reasons; the most obvious reason is that there is unprecedented violence and gang activity in Northern Triangle countries just south of the border that forces people to come to America seeking safety.
The president’s proclamation does nothing to address the push of the Northern Triangle countries of volumes of people seeking safety, nor addresses the pending crises in other parts of South America.
Claim #2: We are encouraging aliens with meritless claims to illegally cross the border, and to repeat the “magic words” that meet the initial bar for credible fear.
This is false. The Trump administration wants the public to believe that because claims for asylum are up and the rate of denial of asylum claims are also up, that there is rampant fraud in the asylum process. These fraudulent seekers, claims the administration, “game the system” because asylum status allows them immediate legal entry, access to certain benefits and assistance programs, and a path to becoming U.S. citizens.
Contrary to popular belief, it is extraordinarily difficult for someone to qualify for asylum in the United States and it is a complicated legal process, which results in a lot of denials. But a denial does not mean their claim was fraudulent.
Despite the influx of asylum seekers, the rate of denial of asylum claims has remained relatively steady, hovering around 50 percent over the past decade. Looking at the rate of denials alone is superficial because it ignores a lot of procedural inefficiencies. One of those procedural inefficiencies is time. Immigration court hearings often occur years after a person or family is granted initial status at the border. In that time, witnesses and paperwork are often lost or destroyed, making it more difficult for a judge to assess the validity of an asylum seeker’s complaint.
More than anything else, though, having a lawyer makes a difference. For the unrepresented, there has been a steady upward march in denial rates, from 73 percent in FY 2001 to 90 percent in FY 2011.
Asylum applicants who are represented in any immigration proceeding have significantly higher chances of getting a positive determination. According to the Transactional Records Access Clearinghouse or TRAC, an immigration data analysis arm of Syracuse University, the evidence shows that having an attorney is almost a necessity to winning asylum in court. In 2016, more than five out of every 10 represented asylum seekers were successful, as compared to only one out of 10 who were unrepresented.
Claim #3: The number of asylum applications has grown, primarily due to a surge in people from Guatemala, Honduras and El Salvador.
This is true. Asylum requests by citizens of El Salvador, Guatemala and Honduras made up 72.9 percent of total claims in fiscal year 2016. Why? For years, gang violence in the Northern Triangle has continued to accelerate without any sign of slowing down. Gangs wield considerable power over millions of people. They engage in violent crime and trafficking of all forms, terrorize women and young girls with rampant sexual violence and exploitation, force young men into gang membership, and target witnesses to their crimes with violence and death threats.
Victims of gang violence often do not report the crimes against them, and state officials and law enforcement in the region have been unsuccessful in combating the gangs. It is no surprise individuals are fleeing in search of safety in the United States, and we must address the influx of individuals and unaccompanied minor children from this region if we want to see a permanent decline.
It is equally important to note that MS-13 — a common red herring used by the administration — is not invading the United States.
President Trump’s Justice Department reported that there are about 10,000 MS-13 gang members in the United States, the same number as 10 years ago, and lower than the number of Crips, Bloods, Latin Kings and Gangster Disciples.
There have been fewer than 200 cases of false family asylum cases this year, and there is no indication that any case involved MS-13. Of the hundreds of thousands of unaccompanied minors who entered the United States, only 56 are even suspected of having MS-13 ties. The Congressional Research Service said it could be misleading to call MS-13 a transnational criminal organization because it has no central leader and no global ambitions; it is made up mostly of teenagers interested in wielding power.
Claim #4: Last year, nearly half the completed cases that involved aliens who claimed credible fear resulted in the alien failing to show up at a hearing or event to file an application for asylum.
This is false or misleading. Somewhere between 29 and 34 percent of completed cases were issued in absentia, meaning that the alien was not present at the hearing. That range could be higher if we include some holdings not issued in absentia, but those cases undermine any narrative of aliens not appearing at hearings.
Claim #5: In recent weeks, an average of approximately 2,000 inadmissible aliens have entered each day at our southern border.
This is highly misleading. While DHS has not released any data for FY 2019 to date, the highest number of inadmissible individuals reported in one month was 12,957, or an average of 418 people per day. Based on the proclamation, and average past rates, it appears that the administration is inflating its count of inadmissible individuals by counting apprehended individuals as inadmissible aliens who have entered, which is a departure from how inadmissible individuals are usually counted.
4. President Trump is relying on the same authority he used for the travel ban, but the intersection with regulatory authority is new.
President Trump is relying on 212(f) and 215(a) of the Immigration and Nationality Act (INA). Together, these statutes allow the president to suspend immigration of specific groups of people upon his finding that the admission of a particular group is detrimental to national security interests. Upholding the very deferential language Congress laid out, the courts have repeatedly confirmed the broad power granted the executive by this statutory regime (including in the third travel ban case, which made it to the Supreme Court). In addition, there is significant latitude afforded to the attorney general to implement additional bars to asylum by issuing regulations (Immigration and Nationality Act 208(b)(2) and (d)(5)B)).
What is significantly less clear is how the 212(f) authority justifies using the regulatory authority in the regulation, which requires any restrictions remain consistent with the section. There is little question that this will be challenged in court.
5. This is not a solution to the myriad asylum problems we face and it provides significant opportunity for confusion and abuse.
There is little guidance about how this will work in process. According to U.S. Customs and Border Protection (CBP), the Department of Defense will provide CBP with a range of assistance as it contributes to CBP’s overall border security mission.
According to Gen. Terrence J. O’Shaughnessy, the commander of North American Aerospace Defense Command (NORAD) and U.S. Northern Command (USNORTHCOM), the military’s role will be to “reinforce, along priority points of entry, so as to enhance CBP’s ability to harden and secure the border.”
CBP and its partners are also tasked with the immediate repatriation of any persons not to be found in need of protection — presumably anyone apprehended between a port of entry — but does not include any details about how that process is to be affected and where, for example, children will be housed if the process is not expeditious. It is likely that this could result in increased detention of families and children.
Interestingly, the proclamation requires the secretary of state and DHS secretary to consult with the government of Mexico regarding appropriate steps to address the approach of large groups of aliens traveling through Mexico, ostensibly in the hope that Mexico will agree to become a “safe third country," and will make efforts to deter, dissuade and return such aliens before they physically enter U.S. territory through the southern border.
Even if we change the eligibility requirements for asylees, we must be able to handle and effectively process the number of people who will likely and inevitably show up on our southern border, which is questionable now. What happens to the individuals backlogged at the border remains a critically important factor to consider; potentially, if the government decides they cannot or will not process all the individuals at the ports of entry, asylum claims can just stop.
There is also the question about whether this is a harbinger of a broader ban to come, one that halts all new asylum applications in the same way that the president halted incoming refugees.