Can a group of foreign nationals rush our borders, claim to be unaccompanied minors or have a credible fear of persecution, and get in – while there is nothing an American president can do to protect America’s sovereignty, security, culture, schools, and social programs from the invasion? Does the president need permission from the courts or even a new act of Congress to just say no?
The political class would have you believe that, but it is simply not true. While President Trump is right to demand congressional action, he has full authority under existing law and the Constitution to prevent an influx of migrants from Central America – whether through a publicity stunt of a traveling caravan walk-a-thon or individual migrants smuggled over the border.
For this article, we will deal with the statutory authority.
Yesterday, an exasperated Trump declared, “We have immigration laws that are laughed at by everybody…We have to change our immigration laws.” He is right that it is worthwhile to change some laws to prevent future unscrupulous presidents from abusing statutes to violate our sovereignty. We should also further remove the courts’ jurisdiction over immigration appeals to end judicial amnesty. But in the meantime, a president who wants to abide by law and sovereignty can use the same discretion Obama used to flood our country with illegal aliens — to do just the opposite.
Asylum laws do not hold America hostage
Our immigration laws were written very prudently to protect our sovereignty while also offering discretionary authority to the executive branch to offer some relief to foreign nationals in case of extraordinary humanitarian concerns. While foreign nationals are afforded an avenue to come here and apply for asylum, they must meet a strict criterion for that status. Trump can and must apply that standard strictly. Also, the same way Obama abused discretion to violate national sovereignty, Trump can use his discretion to properly interpret the text and intent behind the laws.
Section 208 of the Immigration and Nationality Act (INA) states that the asylum applicant “must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”
This law was clearly written for a situation where a group is facing religious persecution, such as the Yazidis in Iraq. Nobody can say with a straight face that any of these people coming from the Central American triangle meet any of these five conditions. These are some of the most homogeneous countries in the world. There is no religious or ethnic persecution. And it is quite laughable to assume they are being persecuted for political opinions. Those teeming across our border are not a bunch of Madisonians railing against the lack of free markets in Honduras.
Obviously, Obama abused the asylum designation, which led to a tenfold increase in asylum claims, clogging up our system and endangering our communities. But there is nothing stopping Trump from interpreting the law properly.
There is no reason why most of these people should be allowed to remain for years until we can find an immigration judge to adjudicate their cases. If executive officials determine that there is no prima facie claim of credible fear of persecution, then they are no different from other illegal aliens. Yet we rarely use expedited deportation, even for non-asylum seekers. As of August 2016, ICE was overseeing 2.3 million illegal aliens who were released from detention, 368,574 of whom had prior criminal convictions but were allowed to remain in the country. Nearly one million have already received final deportation orders. Only a few hundred thousand are deported every year, not enough to even keep up with the new flow. Under current practice, expedited deportations are rarely used and are never used for those in the country for more than two years. That can and must change.
Determine status at the point of entry, not after years of residence
Although those granted asylum status are exempt from expedited deportation, the determination of asylum status is up to the field officers. The statute exempting asylees from expedited deportation (INA §235(b)(1)(B)(v)) stipulates that “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.”
So how would this work at the point of interdiction? As Mike Hethmon, senior counsel of the Immigration Reform Law Institute, told me, “The main tool in the box is for the President to mobilize credible fear adjudicators to the point of entry … so that each alien who claims asylum gets an immediate credible fear interview, and each one who fails the interview is subjected to expedited removal.”
Thus there is no reason there to bring hundreds of thousands of phony asylum seekers into the interior of our country and have them disappear indefinitely into our population.
The courts don’t get a say
What about the courts? Yes, they have already turned night into day, but it’s time to tell them to either follow their own precedent or become irrelevant. According to the Congressional Research Service, under expedited removal, both administrative and judicial review are limited to cases in which the alien claims to be a U.S. citizen or to have been previously admitted as a legal immigrant. Nobody else has an entitlement to demand entry into our country and access to the courts. It would be nice to tighten up the statute, but there is nothing stopping Trump from interpreting it properly today.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.