The details are sketchy at this point — when aren’t they when it involves this White House? — but border agents reportedly are beginning to send asylum seekers arriving at the San Ysidro crossing at the U.S.-Mexico border to Mexico while their applications are considered, a move that doesn’t seem to have any basis in law.
But acting contrary to established law is nothing new for President Trump. We need a national office pool to pick the time and date of the first federal court injunction stopping the plan.
According to news accounts, the administration is enacting a policy trotted out several weeks ago under which it said it will accept asylum applications from people appearing at ports of entry, but then make them wait in Mexico while the applications are considered — a process that often stretches out for years.
San Ysidro apparently will be the first test of this, and it raises some serious questions, beginning with whether asylum law even allows the government to do this. Apparently, the administration is relying on an interpretation of the so-called “contiguous territories” provision of immigration law, a murky bit of statute that seems to allow the government to return migrants who enter from Mexico or Canada while they await expedited removal proceedings.
But court interpretations of that measure are few and far between, and although it seems inapplicable to asylum seekers — whose rights are delineated elsewhere in the law — it doesn’t appear that any court has ruled on that, either.
Cue the lawyers. For those interested in the legal questions, there’s a good dissection here.
And even if there is a legal foundation for this (idle thought: What if Mexico won’t let them back in?), forcing people to wait in another country while they are going through proceedings here raises significant due-process issues.
The immigration courts could use video appearances, but that places a barrier between the migrant and the legal help to which they are entitled. Vox reports that immigration officials plan to escort the migrants from the border to a San Diego courthouse for their hearings (in a backlogged system that’s getting worse under Trump’s partial government shutdown).
But how will the migrants receive legal notification if they don’t have a lawyer and are moving around shelters? How will they gather the documents they need to make their case? What happens if border backups make them late?
From a practical standpoint, the Mexican side of the border already is a burgeoning humanitarian crisis as thousands of migrants fleeing violence and poverty in Guatemala, Honduras and El Salvador try to enter the U.S. and petition for protection. Cartels control neighborhoods, and murder rates are high.
Under federal law and international agreements, government cannot force someone to go to a country where they will be in jeopardy of persecution or violence. Sending someone fleeing gang violence in Honduras to a place rife with violent gangs in Mexico while courts consider an asylum request seems contrary to the whole notion of asylum. As it is, two Honduran youths were killed in Tijuana last month, a measure of just the kind of danger in which asylum seekers should not be placed.
Of course, fulfilling humanitarian obligations is not something the Trump administration spends a lot of time contemplating. But it has devoted significant resources to erecting ever more barriers to immigration into the U.S., both sanctioned and unsanctioned.