Day 349: The “Asylum Bans”
Photo by Barbara Zandoval on Unsplash
The most attended session of the day at the American Immigration Lawyers Association conference was on hot topics in asylum law. Hundreds of lawyers packed into a conference room to hear updates and strategy tips from five passionate (and highly animated) lawyers who practice at the border.
For a while now, we’ve been dealing with the “Circumvention of Lawful Pathways” final rule, which denies people the right to asylum unless they used one of three pathways, the most common of which is to make and attend an appointment through the CBP One app. That’s fraught with issues, like the fact that it’s only available in three languages; it favors more affluent migrants with better access to the internet rather than those most in danger; and, as I just learned today, some traffickers block people from attending their appointments unless and until they pay a “toll.” The rule has exceptions, but they’re broadly and badly drafted, so attorneys are now trying out arguments in court to find out what qualifies.
Just last week, the administration released an “Interim Final Rule” they call the “Secure the Border” rule. (Don’t get me started on how something can be “interim” and “final” at the same time under administrative law theory.) This rule allows the administration to make everyone ineligible for asylum during a set emergency period unless “exceptionally compelling circumstances exist.” Attorneys are now scrutinizing the rule to figure out just what that means and how to prove it.
Search for the Rule of Law in Asylum Policy
Some people support policies like these because they think people coming to the border are violating the law. In this view, these policies are just law enforcement, and people who get caught up in it are no different than people who violate the criminal laws.
Leaving aside for the moment whether our criminal law enforcement system is adequate, there’s another, bigger problem with this argument in immigration: Coming to another country’s border and requesting asylum is perfectly lawful. If World War II and its aftermath taught the world anything, it was that we can’t simply turn our backs on people who are hounded, unprotected, or displaced by their governments. Since then, international law and U.S. statutes have enshrined the right to request asylum.
We all want to see the rule of law effectuated in asylum. But policies like these don’t enhance the rule of law; they undermine it. We don’t get to pick and choose which laws we want to enforce and which ones we want to undermine. Rule of law means rule of law. All of it.