Donald Trump has grown increasingly frustrated by a group of thousands of Central American immigrants heading toward the U.S.
On Thursday, he was preparing to deploy up to 1,000 U.S. military troops to the border with Mexico, according to media reports. His administration is also reportedly considering barring Central Americans from applying for asylum through an executive order. It’s a strategy that mirrors his travel ban on citizens from certain majority-Muslim countries; like that ban, it would most likely be challenged in court.
The unorthodox measures are the president’s latest attempt to break through existing laws and rules that are preventing him from immediately deporting a growing number of children and families showing up at the border, as he would like. Migrants who request asylum have a right to be heard in the United States—and the U.S. has not figured out how to handle their cases efficiently.
“If you could return them home, there would be no crisis,” a senior White House official told reporters earlier this week. The only way to do that, he said, is by changing the law.
Asylum vs. illegal entry
Ramping up border patrolling would make sense if immigrants were trying to sneak into the U.S. undetected (however, soldiers would have to play a secondary role because they’re not allowed to enforce domestic laws.) In the past, troops have been used to help spot suspicious activity along the border.
But many of the immigrants crossing the border are requesting asylum, setting off a complicated legal process that can last years. If there’s enough initial evidence that immigrants claims are legitimate, the U.S. is obligated to take them in and review their cases, even if they don’t have legal documents to be in the country.
Because many of the asylum seekers are children traveling alone or with their parents, they are subject to protections under a court order known as the Flores settlement. In practice, it keeps the government from detaining children for longer than 20 days.
So in many cases, U.S. officials have to release immigrants well before their asylum application process is complete. In recent years, the backlog of asylum claims has ballooned. The longer wait times, in turn, encourage more immigrants to come. Even if their case is denied, they could potentially get to stay legally in the U.S. for a long period of time.
The growing number of asylum claims has bogged down the system, burying legitimate asylum claims “like needles in a haystack,” according to the White House official. Immigration experts largely agree the system is broken. They say that the Trump administration has to upgrade it so that applications can be processed more quickly and efficiently.
But the Trump administration is putting its focus elsewhere. It’s trying to get around the Flores 20-day rule by creating a federal system to license detention facilities, according to new proposed regulations. That limit refers to facilities that are not licensed to house children, but immigrants could in theory be detained indefinitely in licensed facilities. Administration officials believe that holding families for long periods of time would deter others from coming—even though some research suggests that strategy doesn’t work.
The problem for Trump is that there are currently no such licensed facilities, because there’s no other context under which the federal or state governments detain entire families, says Sarah Pierce, a policy analyst at the Migration Policy Institute, a Washington, D.C.-based think tank . If the new licensing rules are implemented, which could happen as early as December, they would likely be met with a slew of lawsuits.
An asylum ban
The White House’s latest idea is to block certain immigrants from entering the country and deny them the right to request asylum on national security grounds, according to reports.
To justify that, administration officials are using the same section of the Immigration and Nationality Act that they used to argue for the travel ban, according to a draft of the proposed executive order reviewed by the Washington Post. That passage of the law states that the president has the authority to block whole classes of people if their entry is “contrary to the national interest” or “detrimental to the interests” of the US.
After three tries, the Trump administration came up with a version of the travel ban that passed legal muster; it might apply what it learned to this new plan targeting Central Americans.
It’s unclear when, or whether, the administration would roll out an asylum ban. If it does, Trump is not certain to get what he wants, which is to quickly deport immigrants. The rising number of children and families arriving in recent months is already straining the federal government’s capacity to process and detain them. Unlike Mexicans, who can be dropped off across the border, the U.S. has to deliver Central American deportees back to their own country, usually by plane. If the administration is unable to accomplish all of that within the Flores time limits, it would have to release the immigrants, as it does now.
Lawsuits against the new executive order could also delay it, or even derail it.
In a Friday morning tweet, the president seemed to admit he needs lawmakers’ help.
The United States has been spending Billions of Dollars a year on Illegal Immigration. This will not continue. Democrats must give us the votes to pass strong (but fair) laws. If not, we will be forced to play a much tougher hand.— Donald J. Trump (@realDonaldTrump) October 26, 2018
But it’s unlikely that he’ll get any assistance from this Congress, which had been deadlocked on immigration issues. And if Democrats take the House or Senate on Nov. 6, changing the law will be all but impossible.