Trump has vowed to limit US exposure to the immigrant “caravan”, but can he?

UPDATE: Trump has been temporarily blocked from banning asylum seekers. The request was made by the American Civil Liberties Union and the Center for Constitutional Rights. We will update this post as this story progresses.

As the migrant “caravan” approaches Tijuana, the Trump administration has been working to limit the amount of immigrants who can enter the US through asylum. In a presidential proclamation that was released on November 9, 2018, the wording makes it very clear that these new limits in the area of asylum are being specifically put in place to stop people who have been slowly making their way towards the US border.

The United States expects the arrival at the border between the United States and Mexico (southern border) of a substantial number of aliens primarily from Central America who appear to have no lawful basis for admission into our country.  They are traveling in large, organized groups through Mexico and reportedly intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit.

There are currently almost 3000 migrant people who have landed in Tijuana, and border inspectors there are only able to process approximately 100 claims per day as those fleeing Mexico try to get through the main entry point into San Diego.

First, don’t we want to stop immigrant “caravans”?

While the Trump administration and some media are treating this caravan as a new kind of threat, immigrant caravans coming from South America commonly occur.

The organization Pueblo Sin Fronteras (People Without Borders) has been assisting groups of Central American refugees and migrants for about 15 years, helping them to travel together to seek asylum in either Mexico or the United States. They organize annual caravans, where people move in larger groups as a form of security. One of the organization’s stated goals is to protect the migrants from gangs, human traffickers, or corrupt law enforcement officials, who can more easily target vulnerable individuals travelling in small groups or alone.

This isn’t some random immigrant mob — it’s an organized group coming up to the United States — as has occurred annually for a number of years.

What are the changes that the Trump administration are trying to put in place re: asylum for immigrants?

That asylum seekers have to go through main ports of entry, not across borders. This is a marked change from legislation that states any foreign national who is in the U.S. or who arrives in the U.S. “whether or not at a designated port of arrival” may apply for asylum, allowing those who had entered the US illegally to apply for asylum after-the-fact.

Earlier in the year the Trump administration already sought to place limits on asylum when they put out their new “Zero Tolerance” immigration policy which dictates that domestic violence and gang violence generally could no longer be used as grounds for asylum.

What is the problem with the proposed changes to asylum in the US?

1)From a legal standpoint, trying to impose sudden changes in policy violates federal law which requires at least 30 days for “notice and comment” on changes in government regulations.

2)But also the US federal law is quite clear, and specific on the rights and processing of asylum seekers, and cannot be changed by executive action alone.

3)The U.S. has also signed the U.N.’s 1951 Convention and Protocol Relating to the Status of Refugees, stating that it cannot return a refugee to a country where his or her life would be threatened on the grounds of race, religion, nationality, membership in a particular social group or political opinion. This convention was written and ratified after the Universal Declaration of Human Rights.

4)Detaining asylum seekers at the border has already been tried, and failed in court. The Obama administration detained families waiting on claims in 2014. The courts turned down the idea that you send a message that asylum seekers aren’t welcome by making the process challenging. It’s hard to believe the courts would change their minds this time.

5) It also means that those thousands of immigrants will have to wait -camped outside the border- until they are processed, one at a time. Previously, they could have been let in, and then processed after the fact. The president has indicated that the immigrants will be detained in “tent cities” until they can be processed.

The policies described above including the efforts to change the asylum process as well as the gang / domestic violence rulings are being challenged in federal court.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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