Immigration advocacy groups challenge Trump’s asylum executive order News
The Trump White House, Public domain, via Wikimedia Commons
Immigration advocacy groups challenge Trump’s asylum executive order

A group of immigration advocacy groups initiated a lawsuit Monday against the Trump administration over its executive order barring migrants the right to make asylum claims at the US-Mexico border.

First, the plaintiffs maintained that the order violates administrative procedure laws because the administration failed to provide adequate reasoning for the implementation. Section 706 of the American Administrative Procedure Act provides that no state agency may engage in conduct which is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” On this ground, the plaintiffs requested the court hold the order unlawful.

Similarly, the plaintiffs argue that the order violates the Immigration and Nationality Act. These provisions include the right of foreign nationals to apply for asylum, for asylum claimants to have a hearing before an immigration judge or asylum officer prior to their removal and the right for asylum applicants not to be removed to countries where “their life or freedom would be threatened.. because of [their] race, nationality, membership in a social or political group, or political opinion” or be subject to torture, and the right of unaccompanied minors to request asylum.

Moreover, the plaintiffs also allege that legislative authority is delegated to Congress, and therefore in acting above the established law Congress has passed, they would be violating the constitution’s separation of powers. 

The executive order, titled “Guaranteeing The States Protection Against Invasion” precludes asylum seekers from filing asylum claims at the US-Mexico Border, alleging the sheer number of arrivals had overwhelmed the capacity for federal officials to evaluate their criminal backgrounds and health records. Asylum seekers both arriving at or presently within the US are barred from invoking the INA as protection for their status. Moreover, Homeland Security would be obliged to make reasonable efforts to “repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States on or after the date of this order.”

In justifying the executive order, the White House cites sections 212(f) and 215(a) of the INA, which authorizes the president to “suspend the entry of all [noncitizens] or any class of [noncitizens] … [when their entry] would be detrimental to the interests of the United States”. They also cite U.S. ex rel. Knauff v. Shaughnessya US Supreme Court case they argue sets a precedent for migration admissibility being an executive power, and the obligations of the president to “Protect each of [the states] against invasion in Article IV, section 4 of the American Constitution.

Under international statutes and treatises, asylum claimants are entitled to due process, asylum protections where justified, and the right not to be subject to torture. Under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, and Punishment (CAT), the US, as a signatory to the convention, is obliged to not send anyone to a country they are at significant risk of being subject to torture. Due process in civil proceedings is obliged under Article 14 of the International Covenant of Civil and Political Rights (ICCPR), obliging states to ensure a “fair and public hearing” may be made available. Article 14 of the Universal Declaration of Human Rights also entitles individuals to the right to seek asylum.