Think Immigration: DC Court Holds Firm Against Trump Attempt to Use 212(f) to End Asylum at Border

President Trump unleashed a series of executive orders within hours of taking office, each bold signature reshaping our nation’s immigration policy and disrupting the lives of millions in the United States. Among these executive orders included a proclamation that claimed an “invasion” at the Southern border and invoked both an obscure part of the Constitution and Section 212 (f) of the Immigration Nationality Act (INA) to suspend the entry of noncitizens at the U.S. Border. In effect, every person at the southern border would be unable to claim asylum regardless of credible fear, thus putting them at risk of being deported back into danger. Predictably, litigation was filed, and the courts are once again confronting a familiar question: Does Section 212(f) enable presidential discretion or mask executive overreach?

In a recent win earlier this month, a federal court rejected its latest immigration proclamation in RAICES v. Noem. The D.C. District Court certified a class of similarly situated individuals, vacated the proclamation as unlawful, finding that that the administration does not have the “authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime . . .” In short, neither 212(f) nor the Constitution can be read to provide the executive with the legal right to supplant the immigration laws created by Congress.

INA § 212(f) grants the president broad authority to suspend the entry of noncitizens when deemed detrimental to U.S. interests. President Trump’s famously used Section 212(f) to implement large scale entry restrictions under his prior administration, including with his 2017 Travel Ban (“Muslim Ban”). However, as the holding in RAICES reinforces, section 212(f) is a broad but not limitless statute. One notable limitation is the very one the current Trump administration is butting up against: the President cannot override or conflict with the statute. Here, that statute at issue is section 208 of the INA, which guarantees the right to seek asylum for anyone who arrives in the U.S., regardless of how they got here. Allowing 212(f) to cancel out Section 208 – or any part of the statute – would dramatically tip the balance of power towards the executive branch and away from Congress.

In the proclamation, the administration took this a step further by connecting 212(f) to the “Guarantee Clause” of the Constitution (Article IV, Section 4). The clause obligates the federal government to guarantee each state a republican form of government and to protect them against invasion. The administration made this connection by labeling migration at the southern border as an “invasion,” framing asylum seekers as a national security threat, and attempting to sidestep established statutory protections.

While the D.C. court ruled that the INA does not provide “the President with the unilateral authority to limit the rights ... to apply for asylum,” this is not the end of the legal battle. DOJ already appealed the ruling, and it is currently pending before the D.C. Circuit. The case is likely to make its way up to the Supreme Court, where the government will argue that it lawfully exercised executive power in the proclamation and emphasize a “national security threat” at the border.

This isn’t the end of the administration’s attempts to end access to asylum. Victories like this, however, are vital in holding onto our commitment to asylum enshrined in both domestic and international law.

Miroslava Becerra Garcia
Former AILA Government Relations Coordinator

Amy Grenier
AILA Associate Director for Government Relations