In a televised speech on the Thursday before the midterm elections, President Donald Trump announced a planned executive order that would further restrict asylum, but that promise didn’t capture the public’s imagination like the announcement that he wanted the troops he sent to the Southern border to treat a thrown rock like a shot from a gun and return fire. Since Pentagon regulations don’t allow such disproportionate, lethal retaliation, that made news, along with the suspicion that Trump was using the southern border as an issue to help Republicans in tough midterm races.
Since the midterm elections, Trump has been far less focused on the caravan, but on Friday he did sign the promised executive order, which changes the consequences for applying for asylum for those who cross the border illegally and not at one of the designated ports of entry. “The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders,” Trump wrote in the order.
Since the caravan he indirectly references has been headed since the beginning toward a port of entry with the idea of applying for asylum, it’s not clear how this measure would address the migrants that he tried to portray as a threat when he campaigned in the closing weeks.
The law has stipulated that immigrants can apply for asylum anywhere once they are inside the United States as long as they do so within a year of arrival. Officially, they will still be able to, but the standard when they’re interviewed by an asylum officer will be “reasonable fear,” a step more stringent than “credible fear” that usually applies. For immigrants to meet the “credible fear” standard, they must establish that there is a significant possibility that they would be persecuted if returned to their country of origin, whereas “reasonable fear” means that persecution is probable if they were to go home. If the judge finds in their favor, they would not be on a path to permanent legal status but would be granted a withholding of removal, which would allow them to stay in the country albeit with a final order of removal that could be executed in the future in some cases.
“That allows the US to fulfill its obligations under international law—which prevents countries from returning migrants to places where their lives are in danger—but doesn’t give people any access to permanent legal status,” writes Vox.com’s Dara Lind.
The new executive order doesn’t allow families to go through the process together because this administration seems addicted to splitting up families despite the legal challenges, horrific optics and public outcry against doing so. It apparently wants to avoid having the admissibility of a spouse or child affect the status of other members of the family.
Shortly after the executive order was announced, the American Civil Liberties Union (ACLU) filed suit to block it, arguing that it is illegal. “Neither the President nor the Attorney General may override the immigration laws enacted by Congress,” contends Lee Gelernt, deputy director of the ACLU's Immigrants’ Rights Project. The ACLU recognizes that the president does have broad authority where immigration is concerned, but he can’t reverse Congress. The Immigration and Nationality Act allows people to apply for asylum whether they pass through a port of entry or not. Trump isn’t addressing something Congress didn’t in this case; he’s overturning a decision explicitly made by Congress—something that would require a Congressional act to do.
A court will almost certainly grant an injunction, which will set the executive order on a path to the Supreme Court. The Conservative majority on the court would seem friendly to the administration, but it’s not clear that it will grant the president the power to overturn the will of the people as manifested in decisions by their elected representatives.
Ironically, this temporary measure is supposed to end in 90 days, and it’s possible that the caravan that inspired it won’t get to the border by then, and if it does, the delays that already exist at ports of entry may prevent it from affecting them. Still, asylum speakers need to talk to an attorney to make sure that they understand the process and determine whether this executive order applies to them.