Illegal Entries by Asylum Seekers Can be Stopped — Quickly

Echoing the Trump Administration’s goal of fashioning a holistic approach to the southern border crisis, the Immigration Reform Law Institute (IRLI) has filed a set of detailed proposals in response to the joint request for public comments by the Departments of Justice and Homeland Security on their interim rule making aliens who fail to apply for asylum at an official port of entry on our border with Mexico ineligible for asylum.

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First, with the stroke of his pen, the President could replace the current asylum-focused chaos with a special humanitarian refugee program based in Mexico. IRLI calls for immediately opening refugee application offices at U.S. consulates in Mexico and Central America. Applicants for refugee status receive more comprehensive vetting — which helps exclude criminals, terrorists, and other undesirables — than do asylum claimants. And illegal entrants who refuse to apply as special humanitarian refugees can be denied both entry and asylum under our laws.

In the meantime, capacity control reforms can help redirect Central American migrants to ports of entry. The administration is already ramping up the existing “queue and quota” system of requiring applicants to wait in Mexico for asylum screening interviews, following the migrant protocols negotiated with Mexican authorities in December. IRLI suggests that this practice be modified by scheduling appointments for illegal entrants after those of aliens who initially appear at ports of entry. Illegal entrants can also be required to complete their application forms before even receiving an interview date.

IRLI also recommends, as authorized under current law, that the Attorney General treat the failure by applicants to apply first for asylum and protection in Mexico as a “heavily weighted negative factor” when exercising his legal discretion to grant or deny asylum. The Administration can also impose asylum application fees on illegal entrants, to help recover the massive expenditures on enforcement resources needed to process illegal entrants seeking asylum.

Another measure would be to implement a wet foot-dry foot standard at the southern border. Only aliens “present in the United States” have a statutory right to apply for asylum. The legal definition of “United States” excludes our territorial waters, including rivers, lakes, and wetlands on the border — features that dominate border topography between El Paso and the Gulf of Mexico.

Finally, the United States needs to be more proactive in humanitarian monitoring of aliens deported back to Central America after their asylum applications have been denied. IRLI recommends that these returnees be allowed to register with U.S. consulates and file reports of post-removal abuse, for follow-up by U.S. consular workers. Consular monitoring would promote re-integration of returnees into their home countries, and also improve the accuracy and timeliness of a key source of information for asylum officers and immigration judges — the Country Condition Reports prepared by the Department of State.

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The interim rule is Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (DHS, DOJ 2018).