The Trump administration’s latest gambit to erode constitutional and legal protections for asylum-seekers will be tested in the courts, and if recent experience is any indicator, Trump’s probably going to lose. Again.
On Thursday, the Trump administration announced a new policy that would require asylum-seekers at the southern U.S. border to remain in Mexico while the U.S. processes those requests. The move could endanger the lives of thousands of migrants, and it isn’t clear how it would even work, or if Mexico is on board with the decision.
In an analysis by The Daily Beast, immigration advocates said the Department of Homeland Security’s “Remain in Mexico” policy, as it is known informally, violates the Constitution, international treaties, and federal law.
“Pushing asylum-seekers back into Mexico is absolutely illegal under U.S. immigration law,” Human Rights First’s senior director for refugee protection, Eleanor Acer, told The Daily Beast. “This scheme will increase, rather than decrease, the humanitarian debacle at the border.
Testifying before the House Judiciary Committee on Thursday, Homeland Security Secretary Kirstjen Nielsen said the government’s “Catch and release” program would be replaced with “catch and return.”
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But there is a fundamental flaw with that strategy, as The New Yorker’s Jonathan Blitzer points out: “[P]eople who are fleeing for their lives cannot be turned away without a chance to plead their case.”
The Trump administration already has failed at several attempts to thwart people from seeking asylum in the U.S. The latest defeat in court happened on Friday, when the U.S. Supreme Court ruled 5-4 against the administration’s attempt to temporarily reinstate a ban on asylum applications by migrants who crossed the border outside an official point of entry, while the underlying case proceeds in court.
In addition to complicated logistics—such as how asylum-seekers would meet with their lawyers or hold hearings with immigration judges while in Mexico—the dangers of “Remain in Mexico” policy became glaringly clear this week when two Honduran teenagers who were part of the migrant caravan were stabbed and strangled to death by would-be robbers in Tijuana.
Per PRI, which reported on the teenagers’ deaths:
The boys’ deaths are a sobering reminder of the dangers asylum-seekers may face while waiting in violent Mexican border regions, where cartels and smugglers have big operations. Migrants are especially vulnerable to being kidnapped and held hostage for ransom by criminal groups because they don’t have ties to the community or a safe place to sleep. Fear of such crimes is what led thousands of Central Americans to travel to Tijuana, which borders San Diego, California, instead of the much closer Texas border crossings — because, while dangerous, Tijuana is less dangerous than areas along the Texas border.
None of this seems to matter to Nielsen, who is more concerned about “aliens trying to game the system…” But it does matter to law experts and immigration advocates. Human Rights First’s Kennji Kizuka told The Daily Beast that, “The administration seems to have no plan for implementation.”
“All of our organizations have been on the ground in Tijuana recently and are united in our assessment that conditions there are very unstable and very unsafe,” Kids in Need of Defense President Wendy Young added, according to the news site.
American Civil Liberties Union attorney Lee Gelernt told USA Today, “This plan cannot be done lawfully.”
Lawmakers will weigh in on the issue when Democrats take control of the House in January. Democratic Rep. Jerrold Nadler, who is the incoming Judiciary Committee chairman, told Nielsen, “I want to put you and the department on notice: The time for accountability has arrived.”
He added, according to USA Today, “The Trump administration, including DHS under your watch, has launched a relentless attack against immigrants of all stripes. The time for zero accountability is over.”