The Trump administration has essentially eliminated the ability to pursue asylum at the border, attempting to erase by executive order a right established in U.S. and international law.
The restrictions leave migrants who claim they fear for their lives almost no path toward safety in the United States.
The new administration’s avalanche of executive orders includes a long list of new rules related to immigration. Numerous states have sued over Donald Trump’s attempt to end birthright citizenship altogether, for example. Along the border, Trump has shut down CBP One, the app that migrants could previously use to schedule an appointment at a port of entry and be allowed into the United States to pursue an asylum claim. Another Trump order reestablished the so-called “Remain in Mexico” policy, wherein migrants seeking asylum are required to wait for their court dates across the border.
But Trump also signed an executive order Monday that essentially prevents all asylum claims along the southern border, on the grounds that the current reality counts as an “invasion,” and that he is asserting an emergency authority to suspend entries “[w]henever 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.”
In the order, Trump announced that he is “suspending the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.” The same order cites “public health, safety, or national security risks,” saying it applies to migrants who fail “to provide Federal officials with sufficient medical information and reliable criminal history and background information.”
Alex Nowrasteh of the Cato Institute has noted that, looking at 2021 and 2022 data, there is no relationship “between monitored diseases and the share of all immigrants, illegal immigrants, or legal immigrants at the state level.” He separately observed, “This is the most extreme immigration executive order I’ve ever seen, totally at odds with the facts. It violates court precedents going back decades.”
The order comes despite the federal government acknowledging earlier this month that border crossings had hit a low point going back to July 2020. The order also contains familiar right-wing fearmongering about immigrants, claiming “millions of aliens who potentially pose significant threats to health, safety, and national security have moved into communities nationwide.”
CBS News reported Wednesday that, based on the executive order, border agents “have been instructed to summarily deport migrants crossing into the country illegally without allowing them to request legal protection, according to internal government documents and agency officials.”
The report added: “Two Customs and Border Protection officials, who requested anonymity to discuss internal guidance, said migrants will not be allowed to see an immigration judge or asylum officer under Mr. Trump’s edict, which effectively suspends U.S. obligations under domestic and international law to ensure people fleeing persecution are not returned to danger.”
“Put simply, this order ends asylum at the United States border for anyone fleeing danger, even for families persecuted on the basis of their religion or political speech,” Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project and a frequent litigator against federal immigration policy, told CBS News.
The report also noted that internal documents cited the president’s public health authority, and that the documents “say requests to release migrants with a court notice will need to be approved by Border Patrol headquarters and will only be considered in ‘life-threatening’ situations.”
Legal commentators assailed the executive order’s reasoning.
“Trump claims to have a power in the Constitution that lets him suspend entire acts of Congress,” Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, told The New Republic. “Immigrants taken into custody have rights. No president can erase immigration law with the stroke of a pen.”
“There is no emergency at the border, where crossings are at a 4-year low,” said Harry Litman, a former federal prosecutor and host of the “Talking Feds” podcast. “There is just a beyond-the-looking-glass President saying a term can mean anything I choose.”
The order “rests on courts buying into the recent, wild theory that asylum-seekers and other migrants are an ‘invasion’ under the Constitution,” said Adam Isaacson, director for defense oversight at the Washington Office on Latin America.
Joe Biden himself instituted a near-ban on asylum claims for people who attempted to enter the country between ports of entry, but his administration pointed to the CBP One app as a legal pathway into the asylum process. Biden’s asylum restriction cited similar legal authority as Trump’s, though it did allow migrants to make their initial case to asylum officers.
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Still, immigration advocates toldHuffPost there were numerous examples of people with asylum claims nonetheless being turned back at the border, and the ACLU and other groups challenged Biden’s restrictions in court.