This morning, the Trump administration, invoking emergency national-security measures, issued a 90-day shutdown to asylum eligibility for anyone crossing the border outside of an official port of entry. The move, taken amid the administration’s relentless fearmongering over a migrant caravan slowly making its way to the US-Mexico border, effectively eviscerates US asylum laws, is already being challenged in the courts, and will potentially be enjoined. But like so many of the administration’s dubiously legal moves, the presidential proclamation sends a clear message about the administration’s approach to international law and human rights—that the United States will not abide.
Today’s order comes after almost two years of racist lashing out against Central American migration by the Trump administration. Instead of addressing the legacy of US-backed war, or acknowledging—or changing—the incarceration and deportation policies that sparked and fomented the rise of the region’s violent gangs; instead of addressing the ongoing economic despoilment of the region through monocrop banana and palm-oil agriculture and sweatshops; instead of working to mitigate climate change–induced sea-level rise and drought, an increasingly important factor in decisions to migrate; and instead of taking a stance against corrupt authoritarian governments, or calling out the 2017 illegitimate elections in Honduras or the blatant corruption in Guatemala, the Trump administration has doubled down on a xenophobic agenda of exclusion that has led to the unnecessary suffering of thousands of migrants.
The Trump administration’s record of action on Central American emigration is a litany of cruelty. It has made it significantly harder for those fleeing severe domestic abuse or gang violence to obtain asylum, it has taken wailing children out of the arms of their parents and sent them across the country through the immigration-detention system. It has woken up hundreds of children in the middle of the night and shipped them to remote tent cities; it has deported parents without their children after coercing them to sign papers; and it has called Central Americans “animals” and generalized the actions of a few into the comportment of an entire region. It has referred to Honduras, among other countries, as a “shithole”; it has taken steps to indefinitely detain migrant children; and it has dispatched Mike Pence to Central America to wag his finger at those who dare leave their country. Most recently, in response to multiple caravans—perhaps more accurately referred to as an exodus—of men, women, and children on their way to the United States; it has sent over 5,000 soldiers to guard the border; it has shut down border-crossing bridges; it has cried wolf about terrorists and dog-whistled about “Middle Easterners.” And with today’s presidential proclamation, the Trump administration has upended national and international-refugee law to refuse, to potentially tens of thousands of people, the right to apply for asylum.
Karen Musalo, of the UC Hastings Center for Gender and Refugee Studies, called the move “clearly, expressly unlawful.” In a statement to the press, the center said that, if implemented, this proclamation “would result in the deportation of countless asylum seekers to perilous harm, in contravention of both U.S. and international law.”
The proclamation has already been challenged, with the American Civil Liberties (ACLU), the Southern Poverty Law Center, and the Center for Constitutional Rights (CCR), among other organizations, having filed a complaint against Trump in the Northern District Court of California. The complaint alleges that the proclamation is “in direct violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar.” A judge could rule on the matter as soon as next week.
The measures the Trump administration has taken against Central American asylum seekers carry a certain irony, as it is the United States’ own draconian policies in the region which, in part, have pushed Central Americans to need refugee protection, to have no other means of entering the country without asking for asylum, and to travel in caravans for protection. After the 2014 “unaccompanied minor crisis,” in which thousands of minors, some unaccompanied and some with family, came to the border, the Obama administration threw money and policing materiel at Mexico, effectively outsourcing immigration enforcement. The move made the dangerous trans-Mexico migration routes even more dangerous, with Mexican federal agents extorting, beating, jailing, deporting, and even killing Central American migrants. Traveling in groups is not only a powerful political statement on the crisis in Central America; it is also simply safer. Militarization along the US-Mexico border has also pushed migrants into the hands of violent paramilitary cartels, who increasingly engage in people smuggling and trafficking. Many migrants—with no other choice but to travel with smugglers—are not in a position to decide how they cross the border: As one Salvadoran woman, traveling with her young son, I spoke with this summer explained, though she wanted to turn herself in, she simply didn’t have a choice, and didn’t even know where her smuggler was taking her until she arrived.
As this summer’s merciless family-separation policy has shown, as long as root causes are not addressed, migrants from Central America will continue to flee violence, corruption, and general insecurity in the region—even if drastic punitive measures are taken on our soil. This September saw the highest number of people in family units ever to cross the US-Mexico border, even amid Trump’s crackdown on migrants.
Justifying the draconian measure, today’s asylum-shutdown proclamation cites a 1981 act by President Reagan to interdict Haitians’ traveling to the United States by sea. The move was challenged in court and, though it was ultimately approved by the Supreme Court, it is widely viewed as an inhumane rejection of asylum claims. By having the Coast Guard intercept boats of fleeing Haitians outside of the national territory, the United States didn’t have to reject asylum claims; it could prevent itself hearing them in the first place—the move was akin to sticking fingers in its ears and pretending not to hear pleas for help. Almost all of those Haitians were either sent back to Haiti, then under the rule of a violent, US-backed dictator, or imprisoned in the new detention center in Guantánamo Bay. The 1981 move also established precedent for the automatic and punitive detention of unauthorized immigrants, including asylum seekers. Lenni Benson, professor at New York Law School and founder of Safe Passage Project, also pointed to the US government’s both following and encouraging similar moves that the EU and Australia were taking—working separately but in parallel to “diminish asylum protections around the world.”
It is also highly dubious to call the situation on the border a national crisis. Despite the surge in families seeking refuge, the total number of border crossers is actually down compared to 2014—and has been steady through the past couple of years. And though the courts are indeed backlogged, this is a logjam of our own making: case law and regulations overcomplicating decisions to such a degree that granting asylum now take on average 1,064 days. If this is a crisis, it only is so for those thousands of men, women, and children who have been uprooted, forced to take a long and perilous journey, and are likely about to get a door slammed in their face when they ask for protection.
The Trump administration used the same invocation of emergency national-security measures that it called on today—Section 212(f) of the Immigration and Nationality Act—to implement the Muslim ban, which was found unconstitutional twice, until the administration decided to ban North Koreans and Venezuelans as well, got another conservative onto the Supreme Court, and found something that could stick.
Especially troubling is that today’s move directly contradicts the 1951 Refugee Convention, and the 1967 Protocol, to which the United States is a party. Article 31 of the convention states that asylum seekers are “rarely in a position to comply with the requirements for legal entry” and “that the seeking of asylum can require refugees to breach immigration rules.” That is, refugees and asylum seekers are fleeing danger, and in order to protect themselves, should be able to cross a border outside of official ports of entry. US law upholds the same guarantee. Baher Azmy, the legal director of CCR told me that the law “could not be more clear that people must be processed for asylum,” even if they cross not at a port of entry. The Refugee Convention article also states that countries “shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization.”
In 2015, the DHS’s own Office of Inspector General raised concerns with CBP’s practice of criminalizing asylum seekers. According to a 2018 lawsuit filed by the ACLU, “The administration is wielding indefinite detention as a weapon to deter future asylum seekers, which is both cruel and unconstitutional.”
And asylum seekers may have no other choice—they have increasingly been turned away from ports of entry, as The Intercept proved when it caught one example on camera this summer. The tactic of pushing back asylum seekers, known as “metering,” allows only a limited number of people to make asylum claims, and has led to long delays, makeshift camps outside of the ports of entry in Mexico, and even the reliance on a totemic notebook system that asylum seekers implemented to try organize themselves—hardly an orderly process. Amnesty International also reported that US officials encouraged Mexican agents to detain and deport asylum seekers as they waited to be able to cross the bridge and make a claim. Congress itself called on CBP last year “to take appropriate steps to ensure that the United States is meeting its legal obligations, to include reminding field officers and agents about CBP’s legal responsibilities to ensure that asylum seekers can enter at POEs.” The Amnesty International report notes that not turning back asylum seekers, a principle known as non-refoulement, is the “cornerstone of international refugee law.”
Though with today’s order people crossing outside of the ports of entry would not be eligible for asylum, they would still be eligible for two other protections—withholding of removal and withholding of removal through the Convention Against Torture. Both forms of protection require a higher burden of proof, neither is a pathway to legal permanent residency or citizenship, and they both can be revoked if conditions in the home countries change.
Volker Turk, the UNHCR’s assistant high commissioner for protection, recently charged Canadians and Americans to take refugee claims “in perspective and to bear in mind that when people talk about a ‘crisis’ these days, these crises are far away from North America or from Europe.” Turk pointed out that 90 percent of the world’s refugees who cross international borders do so far away from both Canada and the United States. And yet, a Trump-induced media frenzy has led to fears of an invasion and a self-reinforcing feedback loop resulting in the United States leading the race to the bottom in undermining the universal principle of refugee and asylum protections.
Denying asylum does nothing to improve the conditions that drive people to flee, and deterrence measures largely don’t work. Denials and deterrence measures do, however, further hamstring US leadership and consign refugees to danger and even death.