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AILA Doc. No. 19032731 | Dated August 16, 2019
The past decade has been marked by a dramatic buildup of border security and the expenditure of enormous resources on border personnel, infrastructure, and surveillance, despite the fact that our southwest border is safer than it ever has been before. The Trump administration has insisted on a series of drastic changes to border processing, changes that have eroded the due process rights of asylum seekers and other migrants in border regions.
This featured issue page provides updates, analysis, and other resources on these policies that include the "Migrant Protection Protocols" program, the "turnback" of asylum seekers at ports of entry, a "zero tolerance" plan for prosecuting asylum seekers, the separation of families, and the increased use of detention on asylum seekers. Combined, the policies form an ever-present and increasing barrier to due process protections for migrants, threatening fundamental rights like access to counsel, and a fair day in court.
Read more about these policies:
On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum individuals who enter the United States from Mexico between ports of entry. The proclamation guts key due process protections for asylum seekers. Under unambiguous laws passed by Congress, all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Not everyone is eligible for that relief; but everyone deserves a full and fair opportunity to pursue it. The proclamation is a transparent end run around our laws and has already come under legal challenge.
On July 16, 2019, the Trump administration issued a joint interim final rule which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. On July 24, 2019, the U.S. District Court for the Northern District of California issued an order enjoining the government from implementing this Rule pending final judgment or further order from the Court. On August 16, 2019, the Ninth Circuit limited the injunction only to the Ninth Circuit, thus allowing the “third country transit asylum ban” to go into effect outside of the Ninth Circuit in the border region of New Mexico and Texas. If permitted to continue, this rule will have devastating effects on those vulnerable individuals seeking asylum and is currently being litigated in both the Northern District of California and in the District Court for the District of Columbia.
On January 24, 2019, DHS announced it would begin implementing "Remain in Mexico," a new policy that would force individuals arriving at the U.S. southern border who are fleeing violence and persecution in their home countries to remain in Mexico pending an asylum hearing before a U.S. immigration judge. DHS has dubbed this plan, the "Migrant Protection Protocols." Remain in Mexico dramatically alters processing of asylum claims at the U.S. southern border and makes it far more difficult for asylum seekers to receive a fair and meaningful review of their claims as required under both U.S. and international law.
In April 2018, the Trump administration implemented a "zero tolerance policy" resulting in the widespread separation of parents and children arriving together at the U.S. southern border between ports of entry. The "zero tolerance policy" mandated the prosecution for illegal entry of everyone apprehended between ports of entry, including asylum seekers. Under this directive, while parents in federal custody underwent criminal prosecution, the administration took away their children without any clear requirement of eventual reunification. On June 20, 2018, President Trump issued an Executive Order (EO) purporting to address the family separation crisis that it created, by expanding the use of family detention, while reaffirming his commitment to a "zero tolerance" policy of border prosecutions, even for those who lawfully claim a fear of persecution and are entitled to seek asylum in the United States. Subjecting children and their families to prolonged detention, however, is harmful, traumatic, and impedes due process. Both family separation and family detention are inhumane practices that create severe due process barriers: the administration should end these policies without delay.
Cite as AILA Doc. No. 19032731.