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November 9, 2018 4:33PM

Why Don’t They Enter Legally? Trump Won’t Let Them

By David J. Bier

President Trump signed an order today that requires the denial of all asylum claims from people who cross the border illegally. The most important thing to understand about this order is that it is not the beginning of a new policy keeping out asylum seekers, but the conclusion of an existing policy. Here are the steps to Trump’s asylum sham:

  • Step 1: The Department of Homeland Security (DHS) moves its agents to the exact U.S.-Mexico border line.
  • Step 2: DHS forcibly keeps asylum seekers in Mexico away from U.S. protection, letting no more than 2 or 3 families cross per day.
  • Step 3: DHS prohibits asylum claims from those who go around the port of entry to get on U.S. soil to turn themselves in and apply for asylum.
  • Step 4: Put the military on the border and have soldiers place concertina wire around the port of entry.
  • Step 5: DHS works with the Mexican government to evict homeless asylum seekers who wait in Mexico at the legal port of entry.
  • Step 6: America is great again.

These policies contradict the asylum statute (8 U.S.C. 1158) which states:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.

The order pretends as if legal ports of entry will still be a viable option for people who want to seek asylum, but this is a sham. Here’s the reality. DHS is permitting no more than two or three families seeking asylum to enter at ports of entry each day. This forces them to either live homeless in Mexico for days or weeks or go around, turn themselves in to Border Patrol, and have their claim processed that way. The Daily Beast explained how this worked in a specific case:

Donelda, 35, and her daughter, 6 . . . are asylum seekers from Guatemala who were turned away by U.S. Customs and Border Patrol at the Paso del Norte port of entry on May 8, the day after Attorney General Jeff Sessions announced the Trump administration’s new “zero tolerance” immigration policy. . . . Like others who have been turned away since May 8, Donelda then tried to cross into the United States illegally, turning herself into Border Patrol. That’s when—under the new policy—she was prosecuted criminally and her daughter was taken from her and shipped to a detention center in the Midwest, thousands of miles away.

The New York Times reported on what happens to those kept out:

The bottleneck has produced a grim sight at the turnstiles where legally authorized border crossers step from Mexico into the United States. Families from El Salvador, Guatemala and Honduras huddle together on the ground near packages of donated diapers and cans of baby formula. Some have endured this limbo for nearly two weeks, sleeping on the ground at night and trying to stay cool during the day as temperatures in this outpost in the Sonoran Desert surpass 100 degrees.

“We made it here on foot and by bus,” said Justo Solval, 25, a laborer traveling with his 21-month-old son, Jonathan. They set out from Suchitepéquez in southwest Guatemala, escaping extortion gangs in an effort to request asylum in the United States, Mr. Solval said. But after arriving in Nogales about a week and a half ago, they have been sleeping on cardboard pizza boxes in a squalid entryway to a bathroom at the border crossing. “We depend on strangers for food, for water, for everything,” Mr. Solval said. “I wanted to do everything legally, to ask for asylum in the proper way, but this is a setback I did not expect for us.”

As the Atlantic explains, DHS now stations agents in the middle of bridges to prevent asylum seekers from stepping on U.S. soil, which would grant them the protections under 8 U.S.C. 1158 to submit asylum applications. Of course, even when they do appear to cross the line, as in this video from the Intercept, the agents still reject them.

DHS Secretary Kirstjen Nielsen has even told Laura Ingraham on Fox News about turning away asylum seekers:

Well, we’re ‘metering,’ which means that if we don’t have the resources to process them on a particular day, they’re going to have to come back, so they’re going to have to wait their turn, and we will process them as we can.

Yet that “turn” may not come for weeks or months or years if every family is forced to wait because, according to researchers at Human Rights First, no more than two or three families may enter any given port per day. There were nearly 161,000 people in family units who arrived at or between ports of entry in FY 2018. Nielsen later was confronted about this at a press conference and refused to admit that asylum seekers were being “turned away,” while explaining that that’s exactly what was happening. A spokesman for DHS also used this same doublespeak when explaining the policy to the New York Times.

Despite the family separation policy in May and June, families kept crossing illegally anyway—evading the blockade at ports of entry. In response to the fact that asylum seekers are avoiding the de facto ban on asylum at ports, this latest order will ban the only remaining option for them. Without any legal way to present their claims, hundreds of people are homeless in Mexico. This image naturally conflicts with the Trump administration’s messaging about how it will accept claims at ports, so what has it done? As Texas Monthly reported today:

Hours after the Trump administration invoked national security powers to change existing rules to deny asylum to anyone entering this country illegally, U.S. immigrant rights advocates in El Paso learned that immigration officials were going to start evicting migrants encamped on international bridges awaiting to legally apply for asylum. U.S. and Mexican authorities have reached an agreement to remove hundreds of asylum seekers, including children, from international bridges linking El Paso and Ciudad Juarez, representatives from the American Civil Liberties Union told Texas Monthly Thursday night. . . .

More than 450 would-be asylum seekers—mostly from Central America—are currently camped out on the Mexican side of three bridges linking the two cities. . . . The lines at the El Paso-Ciudad Juarez bridges have formed because CBP officers are preventing people from reaching the port of entry to apply for asylum, saying the port facilities lack capacity to process the number of asylum seekers now arriving.

This idea that ports of entry lack “capacity” to process 450 asylum seekers is the most absurd lie of all. The El Paso-Ciudad Juarez port of entry processes more than 50,000 north-bound pedestrians and personal vehicles every day. It is laughable to claim that 450 asylees can’t receive background checks and screenings immediately if the administration chose to. DHS could process them all, give them all ankle bracelets for monitoring them in the United States (if it wants), and be done before lunch.

The goal of the president’s new policy is manifestly just to keep out any asylum seekers at all. It’s clear that DHS intends to continue its practice of rejecting asylum seekers at ports of entry as well, as evidenced by the fact that the military is placing concertina wire around the ports of entry. This would obviously be totally unnecessary if they processed the claims at ports, and if the immigrants were trying to sneak in, they wouldn’t go to the port to begin with.

President Trump is violating the law, which was intended to protect asylum seekers in situations like the Jews on the St. Louis who were trying to enter the United States without proper documentation but whom the United States monstrously turned away. Any policy that would turn away the St. Louis—the exact situation that prompted the creation of the asylum statute—flunks the basic tests of legality and morality.

Here are numerous other cases of the illegal practice of turning away asylum seekers: