Despite restraining order, Trump’s proclamation still bars entry of asylum seekers who cross illegally

Despite restraining order, Trump’s proclamation still bars entry of asylum seekers who cross illegally


Originally published by The Hill

President Donald Trump issued a proclamation suspending the entry of aliens who cross the Mexican border into the United States illegally.

The proclamation is based on section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens …

Trump’s expectation was that this would channel these aliens to ports of entry where, if they want to apply for asylum, their applications could be considered in an orderly and controlled manner.

The Justice Department issued an interim final rule (rule) that makes aliens who enter in violation of the proclamation ineligible for asylum. Immigration advocacy organizations filed a motion for a temporary restraining order to block its implementation which was grantedby U.S. District Judge Jon S. Tigar.

Opponents of Trump’s proclamation may think this is a victory, but I don’t think it is.

Apparently, the immigration organizations thought that blocking the rule would prevent Trump from making the illegal crossers ineligible for asylum, but that’s not the case, as the proclamation and the rule do two different things.

The Justice Department lawyers were willing to stipulate that the proclamation would not make any aliens ineligible for asylum, but that stipulation was misleading because it didn’t address the difficulty the proclamation presents by “denying entry” to aliens who cross the Mexican border illegally.

The proclamation doesn’t say anything about making illegal crossers ineligible for asylum.  Although the word “asylum” appears 10 times in introductory paragraphs, the section of the document which states what is being proclaimed doesn’t mention it.

Judge Tigar acknowledged the stipulation and concluded that the case therefore did not present the question of whether section 212(f) authorized Trump to directly limit asylum eligibility by proclamation.

I believe – based on my own experience – the situation is a Catch 22.

The proclamation does not render illegal crossers ineligible for asylum. It bars their entry into the United States.

It’s the not being able to enter that keeps them from getting asylum.

The temporary restraining order prevents Trump from taking any action to continue or to implement the rule, but it leaves his proclamation untouched.

Accordingly, while the injunction is in effect, immigration judges won’t be able to find illegal crossers “ineligible” for asylum for violating the proclamation. But neither will they be able to grant asylum to them. They are barred by the proclamation from entering the United States, and they can’t be asylees if they aren’t allowed into the country.

It reminds me of a case I know well, one I dealt with as a constituent issue when I was an immigration counsel on the House Judiciary Committee.

In 1998, an alien named “Sesay” applied for admission at a port of entry after fleeing from Sierra Leone. He established a credible fear of persecution.  He was scheduled for an asylum hearing before it was learned that he was subject to President Bill Clinton's Proclamation 7062, which barred the entry of aliens who had been members of a military junta in Sierra Leone in 1997.

The immigration judge found Sesay eligible for asylum but refused to grant his application because asylum would entitle him to enter the United States and his entry was barred by Clinton’s proclamation.

Sesay appealed to the Board of Immigration Appeals, and the Board affirmed the judge’s decision. Sesay then appealed the board’s decision to the Second Circuit Court of Appeals. In an unpublished 2003 decision, Sesay v. Immigration and Naturalization Service, the Second Circuit dismissed Sesay’s appeal.

His wife later told me that he was removed in the middle of the night to a country bordering Sierra Leone that agreed to take him. I don’t know what became of him thereafter.

I do not believe all this is what Trump intended when he issued the proclamation. I believe his objective was simply to encourage asylum seekers to apply at a port of entry instead of making an illegal entry.

The immigration organizations almost certainly will file another motion for a preliminary injunction that will request a restraining order to prevent the implementation of the proclamation too.

That will be more challenging in view of the Supreme Court’s holding in the Travel Ban case that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”

It would be better if the asylum seekers just would comply with our laws by requesting asylum at one of the 48 ports of entry on the Mexican border instead of crossing illegally.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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