In November, President Trump issued a ban on asylum for people who cross the U.S.-Mexico border without authorization. Under U.S. law, however, people can seek asylum at any location in the United States regardless of the method of their entry.
Shortly after the ban was announced, a federal district court judge issued a nationwide injunction preventing it from going into effect. The Trump administration asked the U.S. Supreme Court to intervene, but in a 5-4 vote, it refused to do so. That leaves the injunction in place while it is appealed in the normal way.
It now appears as if the president will not comply with the injunction. On Thursday, Trump issued a 90-day extension of the ban.
When the ban was announced in November, Trump insisted it was necessary because "the unlawful entry of aliens is detrimental to the interests of the United States." He neglected to mention that asylum seekers are not, by law, entering unlawfully.
He also stated that the nation's asylum laws are "in crisis as a consequence of the mass migration of aliens across the border between the United States and Mexico." There are, indeed, a large number of asylum seekers at the U.S.-Mexico border, most of whom are fleeing violence in Central America. The presence of thousands of suffering, terrified people at our borders is worrisome, but few others would characterize the situation as a crisis in our asylum laws.
On Thursday, the president also claimed that the Department of Homeland Security and the Attorney General cannot implement any final rules as a result of the injunction. That is not true; the Trump administration is welcome to implement any lawful rule through the established rulemaking process, but they are not free to contravene federal law by executive order. They are also prohibited from implementing this particular rule, as it is the specific subject of an injunction.
"The United States is appealing that injunction," Trump stated in his proclamation of the extension of the rule. "Should the injunction be lifted, aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum under that interim final rule."
In the meantime, Trump's extension of the rule has no legal effect. As always, asylum seekers are eligible based on their presence in the United States and meeting the legal requirement for asylum, which is to demonstrate a credible fear of persecution due to race, nationality, religion, political opinions or membership in a particular social group.
At Yew Immigration Law Group, we have the knowledge and experience to help people with virtually any aspect of U.S. immigration law.