Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship11-9-2018Barring Asylum Claims: The President Versus theStatutePeter MarguliesRoger Williams University School of Law, pmargulies@rwu.eduFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, and the President/Executive Department CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter MArgulies, Barring Asylum Claims: The President Versus the Statute, Lawfare (Nov. 9, 2018, 1:21 PM),https://www.lawfareblog.com/barring-asylum-claims-president-versus-statuteIMMIGRATIONBarring Asylum Claims: The President Versus the StatuteBy Peter Margulies  Friday, November 9, 2018, 1:21 PMPresident Trump has released a proclamation ordering that the United States will only consider asylum applications at recognized ports of entry along the U.S-Mexicoborder. Together with the interim  nal rule issued by the Department of Homeland Security (DHS) and Department of Justice (DOJ), the proclamation clashes with theplain language, structure and plan that Congress outlined in the Immigration and Nationality Act (INA). While the Supreme Court rejected statutory argumentsagainst Trump’s travel ban in Trump v. Hawaii, the statutory case against the new asylum proclamation is more pointed. Indeed, Congress anticipated the problem ofborder in ows noted in the proclamation and enacted detailed procedures that preempt the  eld.First, some background: The new proclamation cites increased migration of Central Americans to the United States through Mexico. The interim  nal rule, which DHSand DOJ issued without prior notice and comment from interested stakeholders, bars foreign nationals crossing between designated ports of entry on the U.S.southern border from seeking asylum. It allows those persons to seek only remedies that are far more dif cult to obtain, such as withholding of removal and reliefunder the Convention Against Torture (CAT). Foreign nationals (referred to as “aliens” under the INA) arriving between designated entry points who wish to seekasylum because of a “well-founded fear” of persecution will thus have to return to Mexico and endure additional risk traveling to a designated location. If they do notwish to shoulder this risk, they will have to meet a materially more demanding standard of proof to prevail in withholding or CAT cases. For support, the newproclamation relies on 8 U.S.C. 1182(f)—the same provision that the government cited to support the travel ban—which authorizes the president to bar the entry of“any alien or class of aliens” whose entry would be “detrimental to the interests of the United States.”The new policy clashes with the INA’s plain meaning. For almost 40 years, Congress has clearly stated that a foreign national who presents herself anywhere on theU.S. border or at a port of entry such as a harbor or airport has a right to claim asylum. In language codi ed as part of the Refugee Act of 1980, Congress authorizedasylum claims by any foreign national “physically present in the United States or at a land border or port of entry” (emphasis added). Congress changed this text in1996, but expressly reaf rmed in 8 U.S.C. 1158(a)(1) the eligibility for asylum of “any alien who is physically present in the United States or who arrives in the UnitedStates (whether or not at a designated port of arrival)" (emphasis added). This inclusive provision surely re ected Congress’s appreciation of facts on the ground:refugees often  ee for their lives and cannot pick and choose at leisure the precise location at which they will seek relief. Given that exigency, allowing an applicantfor refugee status to assert a claim for asylum at any point along a land border is a necessary component of essential refugee protections.Since 1980, it has been Congress’s goal to assemble those necessary components into a coherent structure. Congress passed the Refugee Act of 1980, which  rstmandated inclusive asylum procedures for all arriving foreign nationals, to “provide a permanent and systematic procedure for the admission … of refugees.” Thatcomprehensive approach replaced a patchwork of provisions for refugees that had been in place for the entire post-World War II era. Inclusive eligibility proceduresfor asylum were a key part of this plan.As the Supreme Court explained in INS v. Cardoza-Fonseca (1987), Congress sought to provide greater protection for refugees by carefully distinguishing betweenasylum and the complementary remedy of withholding of removal, which entails a substantially higher standard of proof. To obtain withholding, an applicant mustshow by a preponderance of the evidence that she would be subject to persecution upon return to her country of origin. A preponderance standard requires proof thatit is more probable than not that an applicant would be subject to persecution. Today, applicants receive withholding only if they fail to qualify for asylum on groundsunrelated to their fear of persecution, such as prior criminal conduct. In Cardoza-Fonseca, the government argued that the preponderance standard applied to bothasylum and withholding. Rejecting this argument, the Supreme Court found that Congress deliberately drafted the Refugee Act to allow asylum claims predicatedmerely on a “reasonable possibility” of persecution.According to the justices, Congress viewed the preponderance standard sought by the government as  atly inconsistent with the asylum de nition in the 1980 statute.In reaching this conclusion, the Supreme Court looked to the provisions of the U.N. Refugee Protocol, which the U.S. rati ed in 1967, and the U.N. Convention onRefugees, which the protocol incorporates by reference. As the Conference Report on the 1980 Act noted, the language in the Refugee Act was “based directly” on theProtocol’s language and “is intended … [to] be construed consistent with the Protocol.” In Cardoza-Fonseca, the Supreme Court found that “[t]here is simply no roomin the United Nations’ de nition [of asylum] for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted… he orshe has no ‘well-founded fear’ of the event happening.” According to the Supreme Court, Congress clearly believed that a standard higher than 10% was undulyonerous. Particularly since a refugee must often leave a place of danger hurriedly and must then reconstruct past events thousands of miles away to gain asylum, arigid insistence on a preponderance standard would provide inadequate protection. An asylum applicant, unlike an applicant for withholding, need not jump throughthe hoop of proving that an event is more probable than not to demonstrate a reasonable, objective fear of persecution within Congress’s de nition. Withholding ofremoval is a fallback, but it is only that; Congress saw asylum as the principal avenue for refugee relief.While the proclamation and accompanying DHS interim  nal rule cite increased migration from Central America as a reason to depart from Congress’s scheme,Congress has already legislated comprehensively to address the pressures of in ow at the southern border. In 1996, as part of a massive overhaul of immigration,Congress enacted what it called “expedited removal” provisions—now codi ed in 8 U.S.C. 1225—which authorized summary deportation, without a full immigrationcourt hearing, of certain foreign nationals apprehended at or near a land border. While these truncated expedited removal processes have triggered criticism fromrefugee advocates, it included a carve-out for asylum-seekers that tracked verbatim the asylum provisions described above. Under the 1996 legislation, a foreignnational could assert an asylum claim as long as that individual was physically present in the United States or had arrived at any point of entry, whether or not thegovernment had of cially “designated” that location. For any such individual, an asylum of cer would determine if the claimant had a “credible fear” of persecution,which the 1996 act de ned as a “signi cant possibility” of prevailing in any asylum claim—a standard materially lower than the preponderance standard that governswithholding of removal and CAT relief. Under the 1996 summary procedure, a claimant who met the “signi cant possibility” standard would end up in full adversarialproceedings in immigration court.The new proclamation and DHS  nal interim rule would disrupt Congress’s plan by requiring Central Americans between designated entry points to jump through thehoop of qualifying for withholding of removal. Many will not be able to hurdle that barrier, which the Supreme Court in Cardoza-Fonseca held was inconsistent withcomprehensive protections established by Congress. Put bluntly, substituting withholding for asylum will result in turning away applicants with a fear of torture,death or other persecution that Congress de ned as well-founded and objectively reasonable. Responding to this humanitarian concern, the DHS  nal rule commentsbreezily that those affected are not at risk of persecution or torture in Mexico, whatever their fate in their countries of origin. However, that unsupported conclusionignores the peril that asylum-seekers face from smugglers and other lawless groups operating in Mexico. If, as the  nal rule concedes, increased arrivals at designatedentry points will create delays, those delays will spell peril for asylum-seekers. Congress appreciated in 1980 and 1996 that such peril was too much to bear. That iswhy Congress expressly made arriving foreign nationals eligible to seek asylum anywhere on U.S. land borders.While the Supreme Court granted the president wide leeway under § 1182(f) of the INA in Trump v. Hawaii, the court based that  exibility on analysis of the statutoryscheme. There is no such argument available to the administration here: The asylum framework that Congress enacted in 1980 and af rmed in material part in 1996unambiguously clashes with the new proclamation’s prescriptions. Perhaps the administration is correct that increased migration from Central America requiresfurther modi cations in asylum procedure. But it should address that argument to Congress instead of acting unilaterally to dismantle express protections in the INA.Topics: ImmigrationTags: Immigration and Nationality Act, immigration, immigration reform, migration, Donald Trump, President Trump, RefugeePeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law andProfessional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York: NYU Press, 2010).

Barring Asylum Claims: The President Versus the Statute

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Barring Asylum Claims: The President Versus the Statute

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