The Trump administration is reportedly considering using executive action to prevent people traveling in the migrant “caravan” from presenting themselves for asylum at the US-Mexico border.
The Department of Justice (DOJ) and Department of Homeland Security (DHS) are developing a plan that mimics the “travel ban” from 2017, the San Francisco Chronicle and other media outlets reported Thursday night: President Donald Trump would issue a proclamation preventing a certain “class” of people from being allowed to enter the US. It’s not yet clear how that “class” would be defined, but it would target either the “caravan” in particular or asylum-seekers more broadly.
It’s legal to seek asylum without papers, and the US government is obligated under international law not to send anyone back to a country where they are at risk of persecution due to race, nationality, religion, political opinions, or membership in a social group.
But the Trump administration appears to be laying the groundwork for a plan that would simply bar people from entering the US — presumably keeping Central American asylum-seekers on the Mexican side of the border.
The US government has already been restricting access at official US border crossings and requiring would-be asylum-seekers to wait before being allowed to enter, claiming space constraints at ports of entry.
The “caravan” of about 5,000 people, which originally set off from Honduras on October 12, is still weeks from the US-Mexico border. It is not going to arrive before the November 6 midterm elections, and it is already shrinking as caravan members decide to apply for asylum in Mexico or return to their home countries instead.
However, the Trump administration is in overdrive to respond to what Trump has called a “National Emergency.” The US is already sending 800 troops to the US-Mexico border to provide logistical support for Customs and Border Protection agents.
The proposal (or proposals) reported Thursday night are still under discussion. It’s not clear when or if the White House will act on them. If Trump does take executive action to ban entries in the name of stopping the caravan, though, it’s almost certainly going to attract another court challenge over executive authority to stop people from entering the US — and may well prevent many, many Central American asylum-seekers who aren’t in the caravan from being allowed into the US to make their case.
Here’s what we know:
- The plan reported by the San Francisco Chronicle (which matches a plan Vox has heard is in the works) would have two parts.
- The first step in the plan would be to publish a regulation barring asylum claims from anyone who’s subject to a presidential ban issued under section 212(f) of the Immigration and Nationality Act. That provision, also used in the travel ban, allows the president to “suspend the entry” of a “class of aliens” if he determines their entry would be “detrimental to the interests of the United States.”
- The Trump administration has already been working on such a regulation as part of a broader package of asylum regulations being reviewed at DOJ and DHS.
- Instead of going through the normal process (which takes several months), however, the regulation barring asylum for banned immigrants would be issued as an “interim final rule” — allowing the government to enforce it while it goes through the review process.
- The regulation, which could be issued as soon as Friday, would not change anything on its own. It would have to be issued before the ban itself went into effect.
- As early as Monday or Tuesday, the president could sign a ban that refused entry to some class of people under the 212(f) provision. At that point, those people would also not be allowed to apply for asylum.
But there are still a lot of unknowns in this process. Here’s what we don’t know:
- Whether other, broader executive actions are also being considered. The New York Times reported that plans were under development to “close the southern border” — which implies refusing not only asylum-seekers, but all people or goods seeking to cross from Mexico into the US. This is a much broader proposal than the one the San Francisco Chronicle reported on (and the one Vox has heard about). It’s not at all clear what the legal vehicle for such a move would be.
- Exactly who would be banned under this plan. The ban could cover only members of the caravan currently traveling through southern Mexico (although it’s not clear how the government would know who exactly had been part of the caravan and who wasn’t). Alternatively, it could cover all asylum-seekers from Honduras, Guatemala and El Salvador — the “Northern Triangle” countries driving asylum-seekers to the US — or even all asylum-seekers generally.
- How much advance notice the government would give before implementing the ban, and when it would go into effect. Thousands of Central American asylum seekers present themselves to US officials every month. A broad ban would be far harder to enforce than even the first version of the travel ban in January 2017 — whose rollout was famously disastrous. Without training time, this ban could make that one look like a smooth and efficient government operation.
- Who, if anyone, has signed off on this plan, and whether it will ultimately be approved.
- Whether the ban could survive a legal challenge. In upholding the final version of Trump’s travel ban in June in the case Trump v. Hawaii, the Supreme Court (in an opinion written by Chief Justice John Roberts) made it clear that the president’s power to ban immigrants under 212(f) is extremely broad. At the same time, however, the opinion pointed to the national security reasons offered for the ban, and the careful process by which it was drafted, as evidence that it was legitimate government policy and not just driven by the whims of Trump.
It’s hard to imagine a caravan ban would look as well-thought-out — not least because there’s no evidence that anyone in the caravan poses a security threat, or that the caravan, should it arrive at the border, wouldn’t just line up at a port of entry to seek asylum legally.
The right to seek asylum isn’t just a matter of international law but of the 1980 Refugee Act. Whether US law allows a president to refuse someone the power to seek asylum through a proclamation isn’t entirely clear. It’s a question that the Supreme Court will almost certainly have to consider if this plan is put into effect.