Trump’s or­der on asy­lum chal­lenged

San Antonio Express-News - - FRONT PAGE - By Lomi Kriel STAFF WRITER

Pres­i­dent Don­ald Trump on Fri­day in­voked na­tional se­cu­rity pow­ers to pre­vent mi­grants cross­ing the bor­der il­le­gally from ap­ply­ing for asy­lum, though ad­vo­cates im­me­di­ately chal­lenged it in a fed­eral court in San Fran­cisco.

Trump in his de­cree said mi­grants should seek asy­lum at ports of en­try and that he would com­mit ad­di­tional re­sources to such of­fi­cial cross­ing points in an­tic­i­pa­tion of a large in­flux.

If a judge does not in­ter­vene, the mea­sure would take ef­fect to­day.

It is cer­tain to cause chaos at over­bur­dened ports of en­try along the south­ern bor­der. Dozens were al­ready camped this week on or near in­ter­na­tional bridges from Brownsville to El Paso as they waited to ap­ply for asy­lum, and at the San Diego port of en­try, mi­grants are wait­ing up to five weeks to be pro­cessed. The Rio Grande Val­ley, where more than 11,500 fam­i­lies were ap­pre­hended for cross­ing il­le­gally last month, is ex­pected to par­tic­u­larly feel the crush.

The pres­i­dent, who has railed for weeks about a car­a­van of mostly Cen­tral Amer­i­can mi­grants walk­ing through Mex­ico to reach the United States, is­sued the procla­ma­tion based on the same emer­gency author­ity to con­trol the coun­try’s borders that he cited last year when ban­ning travel from sev­eral Mus­lim na­tions. Fed­eral judges quickly halted the mea­sure, though the Supreme Court al­lowed the ad­min­is­tra­tion to im­ple­ment a lim­ited ver­sion af­ter an 18-month le­gal fight.

Le­gal ex­perts pre­dict a sim­i­lar bat­tle over the pres­i­dent’s at­tempt to re­strict asy­lum. U.S. im­mi­gra­tion law for decades has ex­plic­itly al­lowed those who fear per­se­cu­tion to ask for pro­tec­tion whether or not they en­ter the coun­try il­le­gally. The Amer­i­can Civil Lib­er­ties Union and other groups ar­gued in seek­ing an in­junc­tion that the ad­min­is­tra­tion vi­o­lated that asy­lum statute, as well as fed­eral law gov­ern­ing how agen­cies are al­lowed to change reg­u­la­tions.

“Ever since the hor­rors of World War II, the world’s na­tions have com­mit­ted to giv­ing asy­lum seek­ers the op­por­tu­nity to seek safe haven,” said Ba­her Azmy, le­gal di­rec­tor of the Cen­ter for Con­sti­tu­tional Rights, an ad­vo­cacy group that is part of the law­suit. “The Trump ad­min­is­tra­tion can­not defy this most el­e­men­tary hu­man­i­tar­ian princi-

ple, in vi­o­la­tion of U.S. and in­ter­na­tional law, with a flip of a pres­i­den­tial pen.”

The pres­i­dent and se­nior White House of­fi­cials said the num­ber of im­mi­grants ne­ces­si­tated the ac­tion. New fed­eral statis­tics showed 60,745 peo­ple were ar­rested or deemed in­ad­mis­si­ble at the south­ern bor­der in Oc­to­ber, more than any other month since Trump took of­fice.

“The con­tin­u­ing and threat­ened mass mi­gra­tion of aliens with no ba­sis for ad­mis­sion into the United States through our south­ern bor­der has pre­cip­i­tated a cri­sis and un­der­mines the in­tegrity of our borders,” Trump wrote in the procla­ma­tion. “I there­fore must take im­me­di­ate ac­tion to pro­tect the na­tional in­ter­est, and to main­tain the ef­fec­tive­ness of the asy­lum sys­tem for le­git­i­mate asy­lum seek­ers.”

The num­ber of peo­ple re­quest­ing cred­i­ble fear screen­ings — the first step to re­ceiv­ing asy­lum at the bor­der — in­creased from about 5,000 in 2008 to 97,000 in 2018, ac­cord­ing to Jus­tice De­part­ment data cited in a Fed­eral Reg­is­ter no­tice an­nounc­ing the change.

Over­all il­le­gal im­mi­gra­tion is at his­toric lows, but the num­ber of fam­i­lies com­ing here — mainly from Gu­atemala, El Sal­vador and Hon­duras — has surged to al­most half of all ap­pre­hen­sions at the south­ern bor­der. A record 23,121 crossed il­le­gally in Oc­to­ber, more than any month since Cen­tral Amer­i­cans be­gan com­ing here en masse in 2013, many flee­ing gang vi­o­lence and poverty.

The gov­ern­ment is pre­vented by law from quickly de­port­ing most if they cred­i­bly fear re­turn, and a le­gal set­tle­ment pro­tect­ing chil­dren usu­ally frees fam­i­lies from de­ten­tion. That has frus­trated Trump, who cam­paigned against end­ing “catch and re­lease” and in the run-up to Tues­day’s midterm elec­tions falsely blamed Democrats for the prac­tice as part of an at­tempt to stoke fear over il­le­gal im­mi­gra­tion. He also sent thou­sands of mil­i­tary troops to the bor­der al­though they are not al­lowed to ar­rest mi­grants and said he would erect “tent cities” to de­tain them.

Un­der Fri­day’s procla­ma­tion, and an ac­com­pa­ny­ing in­terim fi­nal rule is­sued by the Depart­ments of Home­land Se­cu­rity and Jus­tice, im­mi­grants who cross be­tween ports of en­try no longer would be el­i­gi­ble for asy­lum but could qual­ify for a type of pro­tec­tion known as “with­hold­ing from re­moval,” which has a far higher bur­den of proof. It is im­mensely more dif­fi­cult to at­tain, so many more im­mi­grants would likely be quickly de­ported. It also does not lead to any type of le­gal sta­tus as with asy­lum.

Groups that sup­port lim­it­ing im­mi­gra­tion ap­plauded the move, say­ing it would re­duce the num­ber of mi­grants seek­ing asy­lum, which has con­trib­uted to a record back­log of more than 1 mil­lion cases in the civil im­mi­gra­tion courts. It can take years to ad­ju­di­cate many cases be­fore mi­grants are de­ported.

“The procla­ma­tion and sub­se­quent rule changes will make im­por­tant al­ter­ations to the asy­lum process by at­tempt­ing to re­duce the flood of mi­grants who en­ter the United States il­le­gally be­fore ask­ing for asy­lum,” said Dan Stein, pres­i­dent of the Wash­ing­ton-based Fed­er­a­tion for Amer­i­can Im­mi­gra­tion Re­form. “Un­til loop­holes that have been ex­ploited for years are closed and asy­lum laws are changed to pro­tect the cred­i­bil­ity of the process, we’ll con­tinue to see in­creased pres­sure on our south­ern bor­der.”

Le­gal ex­perts said the ad­min­is­tra­tion’s ar­gu­ment ap­peared un­law­ful.

“At the end of the day, this is not go­ing to be per­mis­si­ble,” said Leon Fresco, who over­saw im­mi­gra­tion lit­i­ga­tion as part of for­mer Pres­i­dent Barack Obama’s Jus­tice De­part­ment. “All of the steps of this are flawed.”

He said the emer­gency author­ity in­voked by the pres­i­dent ap­plied only to peo­ple who have not yet en­tered the U.S., not those al­ready across the bor­der. And he noted that the first line of the law gov­ern­ing asy­lum states that any im­mi­grant who ar­rives in the coun­try “whether or not at a des­ig­nated port of ar­rival” is el­i­gi­ble to ap­ply for the pro­tec­tion.

“It is lit­er­ally the first few words of the statute,” he said.

Charles Fos­ter, a Hous­ton im­mi­gra­tion at­tor­ney who ad­vised for­mer Pres­i­dent George W. Bush, said the law is “black and white.”

“I don’t see any merit to this ar­gu­ment at all,” he said.

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