The Trump administration’s Vogonish approach to asylum law

Traditionally, how an asylum applicant entered the country didn’t matter much. After all, when you’re fleeing for your life (and possibly paranoid about government officials based on your experience at home), much can be forgiven. Applicants would have to relate how they came to US but that was mainly to help gauge their credibility and to make sure that they weren’t “firmly resettled” in a third country. See, e.g., Matter of Pula, 19 I&N Dec. 467, 474-475 (BIA 1987).

Of course, it’s preferable for the alien to show up at a port of entry and ask for asylum. They are then given a “credible fear” interview to assess their claim. If it passes muster, they are paroled into the US (with possible detention) to pursue their claim; if it doesn’t, they get the “expedited removal” treatment, i.e., they don’t get in. Unfortunately, the Trump administration has been illegally turning back would-be asylum seekers without the credible fear interview. Naturally, this leaves them little choice but to enter illegally in order to apply for asylum.

Now, the administration has come up with a truly Vogonish plan to stop these people from claiming asylum. Entering the US illegally is a crime, it’s a misdemeanor. It’s has, however, been rarely prosecuted mainly because US attorneys have better things to do than prosecute misdemeanors, e.g., prosecute felonies, and it’s a lot simpler to put them in removal (deportation) proceedings and let the immigration courts deal with it. Cheaper too since removal is a civil proceeding and there’s no right to a government-paid lawyer or trial by jury, etc. (Illegal re-entry after having been deported once has always been prosecuted vigorously.) The administration’s plan is simple: prosecute everyone for illegal entry and then make anyone convicted of illegal entry ineligible for asylum, regardless of the merits of their case. From the Vox article:

“If adopted, the regulation, combined with the zero tolerance initiative, would allow the administration to set up assembly-line justice for asylum seekers, including families, entering the US. People who entered between official ports would be held by the Department of Homeland Security, prosecuted for illegal entry, convicted, then have their asylum applications denied and get deported.”

And, of course, there are the recent decisions by AG Sessions that change the law with regard to victims of domestic violence and gang violence. More on that at some future date (if I get around to it).

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