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Trump Administration Tightens Procedures with Respect to Asylum Seekers at the Southern Border

Published online by Cambridge University Press:  09 April 2019

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Extract

The Trump administration undertook a variety of actions related to the southern U.S. border in late 2018 and early 2019. Pointing to the progress of thousands of migrants traveling together from Central America to the U.S. border, President Trump deployed troops to the border and issued a proclamation providing that access to asylum would only be available at the southern border to those who entered through an authorized port of entry. Legal challenges to this proclamation and its implementation by the Department of Homeland Security (DHS) immediately followed, and a federal district court issued a temporary restraining order on November 19 and a preliminary injunction on December 19 against its enforcement. In addition, after ongoing negotiations with Mexico, the Trump administration announced that it would implement an arrangement under which asylum seekers would await their court date in Mexico rather than the United States. These ongoing developments are part of broader attempts by the Trump administration to erect barriers to migration across the southern border.

Information

Type
General International and U.S. Foreign Relations Law
Information
American Journal of International Law , Volume 113 , Issue 2 , April 2019 , pp. 377 - 386
Copyright
Copyright © 2019 by The American Society of International Law 

The Trump administration undertook a variety of actions related to the southern U.S. border in late 2018 and early 2019. Pointing to the progress of thousands of migrants traveling together from Central America to the U.S. border, President Trump deployed troops to the border and issued a proclamation providing that access to asylum would only be available at the southern border to those who entered through an authorized port of entry. Legal challenges to this proclamation and its implementation by the Department of Homeland Security (DHS) immediately followed, and a federal district court issued a temporary restraining order on November 19 and a preliminary injunction on December 19 against its enforcement. In addition, after ongoing negotiations with Mexico, the Trump administration announced that it would implement an arrangement under which asylum seekers would await their court date in Mexico rather than the United States. These ongoing developments are part of broader attempts by the Trump administration to erect barriers to migration across the southern border.

In his first week in office, Trump issued an executive order directing executive departments and agencies “to deploy all lawful means to secure the Nation's southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”Footnote 1 In a memorandum issued on April 6, 2018, then Attorney General Sessions announced the Trump administration's “zero-tolerance policy” regarding the unauthorized entry of immigrants at the southern border.Footnote 2 In the weeks following, the Trump administration effectuated this policy by generally detaining adults who entered without authorization and thereby separating families at the border.Footnote 3 Met with outrage and a swift legal challenge,Footnote 4 this use of family separation was brought to an end on June 20 when Trump issued an executive order stating that the “policy of this Administration [is] to maintain family unity … .”Footnote 5

Following the controversy surrounding the Trump administration's family separation practices, news of a “migrant caravan” traveling from Central America toward the United States’ southern border erupted in the media and “dr[ew] the ire of President Trump.”Footnote 6 Initially a single group of less than two hundred migrants that formed in San Pedro Sula, Honduras, in mid-October 2018, the caravan eventually swelled to include several thousand migrants and splintered into smaller groups as it made its journey northward.Footnote 7 On October 18, the government of Mexico requested additional support from the United Nations to process the anticipated influx of individuals seeking to apply for asylum,Footnote 8 a move that the United States supported.Footnote 9 As news of the caravan surged in the media and “triggered reactions and hostile measures by some authorities in transit and destination countries,” the Inter-American Commission on Human Rights (IACHR) “expresse[d] concern” over the “human rights violations and abuses” faced by the migrants and “urge[d] the States concerned to adopt measures to guarantee the human rights of these individuals … .”Footnote 10

In preparation for the arrival of the caravan at the southern border of the United States, Department of Defense (DOD) officials fulfilled Trump's wish to “bring[] out the military for this National Emergency”Footnote 11 by deploying over 5,200 active-duty troops to the Mexican border.Footnote 12 The active-duty deployment was intended to supplement Operation Guardian Support, a mission initiated in AprilFootnote 13 that involved the deployment of over two thousand National Guard troops to the southern border.Footnote 14 DOD officials testified to the House Armed Services Committee on January 29, 2019, that “‘our military's presence and support have served to increase the effectiveness of’” Customs and Border Protection (CBP) in its “‘border security operation by enabling them to focus on their law enforcement duties at our ports of entry.’”Footnote 15 Undersecretary of Defense for Policy John Rood emphasized that “military support has been, and will continue to be provided consistent with the law, including the Posse Comitatus Act.”Footnote 16

Although CBP determined that “‘the likelihood of violence’” directed against federal agents along the border would be “‘minimal,’”Footnote 17 Chief of Staff John Kelly signed a “decision memorandum” on November 20 authorizing U.S. service members at the border to use “a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search” to protect CBP agents.Footnote 18 In addition, the Standing Rules for the Use of Force for U.S. Forces authorize military members to “exercise individual self-defense in response to a hostile act or demonstrated hostile intent.”Footnote 19 According to the CBP Use of Force Policy Handbook, CBP agents are authorized to use “less-lethal force”Footnote 20 if such force is “both objectively reasonable and necessary in order to carry out the Authorized Officer's/Agent's law enforcement duties.”Footnote 21 Agents may use deadly force “only when necessary, that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of serious physical injury or death to the officer/agent or to another person.”Footnote 22 On two known occasions in late 2018 and early 2019, U.S. border agents shot tear gas across the border toward crowds of migrants, including children.Footnote 23 After the second incident, the Mexican government sent a diplomatic note to the U.S. Embassy in which it “deplore[d] the occurrence of any sort of violent act on the border with Mexico” and requested a “thorough investigation” into the circumstances of the incidents.Footnote 24

In addition to the deployment of troops, the Trump administration also acted to tighten the process for asylum seekers. On November 9, 2018, Trump issued the Presidential Proclamation “Addressing Mass Migration Through the Southern Border of the United States.”Footnote 25 In this proclamation, Trump limited access to asylum at the southern border to those crossing at an official port of entry:

I am similarly acting to suspend … the entry of certain aliens in order to address the problem of large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation. I am tailoring the suspension to channel these aliens to ports of entry, so that, if they enter the United States, they do so in an orderly and controlled manner instead of unlawfully. Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry … .

But aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum under the regulation promulgated by the Attorney General and the Secretary of Homeland Security that became effective earlier today.Footnote 26

This suspension was initially for a ninety-day period, which Trump subsequently extended for another ninety-day period on February 7, 2019.Footnote 27 As authority for this suspension, Trump pointed to Section 212(f) of the Immigration and Nationality Act (INA), which authorizes the president to “suspend the entry of all aliens” following a finding that “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States … .”Footnote 28 Trump had previously relied on this section of the INA in enacting his travel ban against immigrants and non-immigrants seeking to enter the United States from a handful of predominantly Muslim countries; the third iteration of this travel ban was upheld by the Supreme Court on June 26, 2018.Footnote 29

On the same date of publication of this proclamation, DHS and the Executive Office for Immigration Review (EOIR) published an interim final rule “governing asylum claims in the context of aliens who are subject to, but contravene, a suspension or limitation on entry into the United States through the southern border with Mexico … .”Footnote 30 According to the interim final rule:

[T]he Departments are amending their respective existing regulations to provide that aliens subject to such a proclamation concerning the southern border, but who contravene such a proclamation by entering the United States after the effective date of such a proclamation, are ineligible for asylum. The interim rule, if applied to a proclamation suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligibility for asylum and thereby channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner.Footnote 31

Within hours of the proclamation and accompanying regulation, the American Civil Liberties Union filed a lawsuit on behalf of several nonprofit immigrant rights organizations in the federal district court for the Northern District of California.Footnote 32 The complaint alleged that the proclamation and interim final rule are “unlawful and invalid” as contrary to both the INA and Administrative Procedure Act (APA).Footnote 33 Section 208 of the INA provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien's status, may apply for asylum … .”Footnote 34 The plaintiffs argued that the proclamation and interim final rule are “in direct violation of Congress's clear command that manner of entry cannot constitute a categorical asylum bar.”Footnote 35 The plaintiffs separately argued that the Acting Attorney General and Secretary of Homeland Security promulgated the rule without the requisite procedural steps under the APA.Footnote 36 The plaintiffs requested declaratory relief and a “preliminary and permanent injunction enjoining Defendants, their officials, agents, employees, assigns, and all persons acting in concert or participating with them from implementing or enforcing the Proclamation or interim final rule.”Footnote 37

On November 19, the district court judge granted the plaintiffs’ motion for a temporary restraining order and denied a stay pending appeal, temporarily barring the proclamation and interim rule from taking effect.Footnote 38 The court stated:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden . . . . Also, Plaintiffs and the immigrants they represent will suffer irreparable injury if the rule goes into effect pending resolution of this case.Footnote 39

Following this order, the government filed an emergency motion for a stay pending appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit denied the government's motion on December 7, stating:

The Government argues that it is likely to succeed on the merits of its appeal because the Rule (1) is consistent with the INA's asylum provisions and (2) was properly promulgated. We respectfully disagree. Although the merits of the procedural issue may be uncertain at this stage of proceedings, the Government is not likely to succeed in its argument that the Rule is consistent with the INA.Footnote 40

On December 19, the district court judge granted the plaintiffs a preliminary injunction.Footnote 41 The Trump administration responded to these court orders with hostility: in response to the district court's grant of a temporary restraining order, Press Secretary Sarah Huckabee Sanders stated that the decision was a result of “activist judges imposing their open borders policy preferences, which are rejected by the overwhelming majority of the American people, and interfering with the executive branch's authority to administer the immigration system in a manner that ensures the Nation's safety, security, and the rule of law.”Footnote 42 In response to the order granting a preliminary injunction, Sanders stated: “Today's ruling is only the latest example of judicial activism that encourages migrants to take dangerous risks; empowers criminal organizations that spread turmoil in our hemisphere; and undermines the laws, borders, Constitution, and sovereignty of the United States.”Footnote 43 On December 21, the government's application to the Supreme Court for a stay was denied, although four of the nine justices would have granted this application.Footnote 44

In denying the government's motion on December 7, the Ninth Circuit noted the government's international legal obligations to accept asylum seekers and observed that “the rule of decision enforced by the Government—that illegal entry, through Mexico specifically, will always be disqualifying—is inconsistent with [these] treaty obligations … .”Footnote 45 The United States acceded to the 1967 Protocol Relating to the Status of Refugees (Protocol) on November 1, 1968.Footnote 46 According to a provision of the 1951 UN Convention Relating to the Status of Refugees incorporated into the Protocol, state parties

shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.Footnote 47

State parties cannot expel refugees “save on grounds of national security or public order”Footnote 48 and are prohibited by the principle of non-refoulement from returning a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”Footnote 49 As a “reflect[ion]” of “the primary responsibility for protection of the state in which a person arrives and seeks international protection,” the Office of the UN High Commissioner for Refugees (UNHCR) has stated that “ensuring refugee protection and access to human rights for individual refugees is the responsibility of the state where the refugees are … .”Footnote 50 With respect to the transfer of refugees or asylum seekers to a “safe third country,” the UNHCR has indicated that such an arrangement is acceptable so long as it is established, as a “precondition” to such transfer, that the refugee or asylum seeker “has access in that country to standards of treatment commensurate with the 1951 Convention, its 1967 Protocol and international human rights standards.”Footnote 51

The United States has been and remains in discussions with Mexico over the creation of an agreement providing that Mexico constitutes a “safe third country” to which the United States can refer Central American asylum seekers.Footnote 52 In addition, for several months surrounding the arrival of the migrant caravan, the two countries negotiated over the prospect of implementing a policy under which asylum seekers would remain in Mexico while they await their immigration court dates in the United States.Footnote 53 Although the previous Mexican administration was resistant to such a policy, officials in the incoming administration under President Andres Manuel López Obrador, sworn in on December 1, signaled that they were potentially more receptive to it.Footnote 54

On December 20, Secretary of Homeland Security Nielson announced that the United States would be invoking Section 253(b)(2)(C) of the INA, which applies to aliens arriving by land “from a foreign territory contiguous to the United States” and authorizes the attorney general to “return the alien to that territory” pending removal proceedings.Footnote 55 Describing this initiative, entitled “Migration Protection Protocols,” as “historic action to confront the illegal immigration crisis facing the United States,” Nielson explained that “individuals arriving in or entering the United States from Mexico—illegally or without proper documentation—may be returned to Mexico for the duration of their immigration proceedings.”Footnote 56

Although Mexico did not formally agree to this development,Footnote 57 it acknowledged in a statement that it

will authorize, for humanitarian reasons and temporarily, the entry of certain foreign persons from the United States who have entered the country through a port of entry or who have been apprehended between ports of entry, have been interviewed by the authorities of migratory control of that country, and have received a summons to appear before an immigration judge … . They will be entitled to equal treatment without any discrimination and with due respect to their human rights, as well as the opportunity to apply for a work permit so they can find paid jobs, which will allow them to meet their basic needs.Footnote 58

The Trump administration announced on January 24, 2019, that it would begin implementing this new policy,Footnote 59 and the first Central American migrant seeking asylum in the United States was sent back to Mexico on January 29.Footnote 60 A legal challenge to the policy was filed on February 14, 2019, by immigrants and advocacy groups.Footnote 61 The complaint describes the dangers to migrants of remaining in Mexico, including the risks of experiencing gang violence, discrimination, and extortion, and notes that Mexico has “no functioning asylum system.”Footnote 62 The complaint alleges that the Migration Protection Protocols violate portions of the INA and the APA, and it also raises a claim under customary international law of a violation of the prohibition against refoulement.Footnote 63

Leading up to and following the United States’ response to the arrival of large groups of migrants at the southern border, the Trump administration has continued to implement various other measures related to migration from Central America. With its move away from family separation practices, it is now seeking to abolish aspects of a long-standing consent decree, known as the Flores Settlement, which limits the detention of migrant children.Footnote 64 The aim of the Trump administration in doing so is that, rather than releasing families, Immigration and Customs Enforcement “may use appropriate facilities to detain family units together during their immigration proceedings … .”Footnote 65 In another development last year, Sessions adopted an interpretation of the INA's asylum provisions that excluded asylum seekers from grounding their claims to belong to a protected “social group” in “private criminal activity,” thus effectively eliminating asylum for claims “pertaining to domestic violence or gang violence perpetrated by non-governmental actors.”Footnote 66 A federal district court granted a permanent injunction against Session's decision in December 2018; the case is presently pending on appeal.Footnote 67 Finally, the last weeks of 2018 and first weeks of 2019 saw unprecedented gridlock over the issue of funding for a physical barrier at the border. After a 35-day partial government shutdown, Trump signed a short-term spending bill, which did not include funding for the border wall.Footnote 68 When it became clear that further funding would not be forthcoming at the level sought by Trump, he proclaimed on February 15, 2019, that “a national emergency exists at the southern border of the United States” in order to unlock other funding tied to emergency support for the military.Footnote 69 Legal challenges to Trump's declaration of an emergency are pending in the courts.Footnote 70

References

1 Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

2 Jeff Sessions, Office of the Attorney General, Memorandum from the Attorney General to Federal Prosecutors Along the Southwest Border (Apr. 6, 2018), at https://www.justice.gov/opa/press-release/file/1049751/download [https://perma.cc/QN2C-NLSD]. In a press release about the announcement, Sessions declared that “a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border … .” U.S. Dep't of Justice Press Release, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), at https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry [https://perma.cc/VZ8Z-6RZP].

3 Brian Naylor, DHS: Nearly 2,000 Children Separated from Adults at Border in 6 Weeks, NPR (June 16, 2018), at https://www.npr.org/2018/06/16/620451012/dhs-nearly-2-000-children-separated-from-adults-at-border-in-six-weeks. For additional context about the separation of families under the zero-tolerance policy, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 745, 748–49 (2018).

4 See L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018) (issuing a preliminary injunction halting the practice of separating families at the border and ordering the government to reunite separated children with their parents in a designated time period).

5 Exec. Order No. 13,841, 83 Fed. Reg. 29435 (June 20, 2018).

6 Kirk Semple, What Is the Migrant Caravan and Why Does Trump Care?, N.Y. Times (Oct. 18, 2018), at https://www.nytimes.com/2018/10/18/world/americas/trump-migrant-caravan.html [hereinafter Caravan Article]. Taking to Twitter, Trump described the caravan as an “assault on our country” replete with “[m]any Gang Members and some very bad people” and threatened the governments of Honduras, El Salvador, and Guatemala that “if they allow their citizens, or others, to journey through their borders and up to the United States, with the intention of entering our country illegally, all payments made to them will STOP (END)!” Donald J. Trump (@realDonaldTrump), Twitter (Oct. 29, 2018, 7:41 AM), at https://twitter.com/realDonaldTrump/status/1056919064906469376 [https://perma.cc/8NUP-BV98]; Donald J. Trump (@realDonaldTrump), Twitter (Oct. 16, 2018, 6:19 PM), at https://twitter.com/realdonaldtrump/status/1052368431201341447 [https://perma.cc/RAY8-H6N8]; see also Donald J. Trump (@realDonaldTrump), Twitter (Oct. 18, 2018, 4:25 AM), at https://twitter.com/realdonaldtrump/status/1052883467430694912 [https://perma.cc/T4HX-48XL]. Rather than ceasing foreign aid to Honduras, El Salvador, and Guatemala, however, the Trump administration pledged on December 18 to invest $5.8 billion in these countries to “promote institutional reforms and development in the Northern Triangle.” U.S. Dep't of State Press Release, The U.S. Strategy for Central America and Southern Mexico (Dec. 18, 2018), at https://www.state.gov/r/pa/prs/ps/2018/12/288168.htm [https://perma.cc/KT4F-J9NC].

7 Caravan Article, supra note 6.

8 For an overview of the UNHCR’s involvement in Mexico with respect to the migrant caravan, see UNHCR Situation Update, Response to Arrivals of Asylum-Seekers from the North of Central America (Nov. 14, 2018), available at http://reporting.unhcr.org/sites/default/files/UNHCR%20Situation%20Update%20on%20NCA%20EN%20-%2014NOV18_0.PDF.

9 U.S. Dep't of State Press Release, Mexico Requests UNHCR Assistance to Process Migrants (Oct. 18, 2018), at https://www.state.gov/secretary/remarks/2018/10/286769.htm [https://perma.cc/NA27-BKLW].

10 IACHR Press Release, IACHR Expresses Concern Over the Situation of the “Migrant Caravan” from Honduras and Calls on the States of the Region to Adopt Measures for their Protection (Oct. 23, 2018), at http://www.oas.org/en/iachr/media_center/PReleases/2018/225.asp (further stating that “the IACHR rejects the use of stigmatizing and criminalizing language and unfounded accusations in reference to migrants and asylum seekers, which may encourage xenophobic attitudes against such persons”).

11 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 25, 2018, 4:05 AM), at https://twitter.com/realDonaldTrump/status/1055414972635926528 [https://perma.cc/L27S-SANP].

12 Jim Garamone, 5,200 Active-Duty Personnel Moving to Southwest Border, Northcom Chief Says, U.S. Dep't of Defense (Oct. 29, 2018), at https://dod.defense.gov/News/Article/Article/1675810/5200-active-duty-personnel-moving-to-southwest-border-northcom-chief-says [https://perma.cc/99CR-AJYX] [hereinafter Deployment Announcement]. Originally dubbed Operation Faithful Patriot, the mobilization was designed to “harden the southern border” and included, in addition to the troops, three combat engineer battalions, members of the U.S. Army Corps of Engineers, military helicopters, and military police units. Id.

13 On April 4, 2018, Trump signed a memorandum entitled “Securing the Southern Border of the United States” in which he asserted that “[t]he security of the United States is imperiled by a drastic surge of illegal activity on the southern border” and directed the secretary of defense to “support the Department of Homeland Security in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into this country.” Donald J. Trump, Memorandum on Securing the Southern Border of the United States, 2018 Daily Comp. Pres. Doc. No. 218 (Apr. 4). Trump authorized the Secretary of Defense to “request use of National Guard personnel to assist in fulfilling this mission” and to “use such other authorities as appropriate and consistent with applicable law.” Id.

14 Deployment Announcement, supra note 12.

15 Jim Garamone, DOD Officials Testify on Military Support to Southwest Border, U.S. Dep't of Defense (Jan. 29, 2019), at https://dod.defense.gov/News/Article/Article/1743120/dod-officials-testify-on-military-support-to-southwest-border [https://perma.cc/ZC34-R6RT] (quoting Joint Staff Director of Operations Michael Gilday).

16 Id. The Posse Comitatus Act states: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” 18 U.S.C. § 1385; see generally Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (Global War on Terrorism Paper 14, 1959), available at https://www.armyupress.army.mil/Portals/7/combat-studies-institute/csi-books/matthews.pdf (discussing the origins of the Posse Comitatus Act and the limits it places on military involvement in law enforcement operations).

17 Ron Nixon, Helene Cooper & Thomas Gibbons-Neff, Homeland Security Dept. Finds “Minimal” Risk to Border Guards, Undercutting Trump Plan, N.Y. Times (Nov. 20, 2018), at https://www.nytimes.com/2018/11/20/us/politics/military-border-patrol-migrants.html (quoting an internal CBP document).

18 James Laporta, Donald Trump Signs Authorization for Border Troops Using Lethal Force as Migrant Caravan Approaches, Document Reveals, Newsweek (Nov. 21, 2018), at https://www.newsweek.com/donald-trump-memo-migrant-caravan-border-troops-1226945 (including the full text of the memorandum).

19 Chairman of the Joint Chief of Staffs, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, at 2 (June 13, 2005), available at http://www.jag.navy.mil/distrib/instructions/CJCSI%203121.01B13Jun05.pdf.

20 “Less-lethal force” is defined as “force that is not likely to cause serious physical injury or death.” U.S. Customs and Border Protection Office of Training and Development, Use of Force Policy, Guidelines and Procedures Handbook, at 3 (May 2014), available at https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf.

21 Id.

22 Id.

23 The first incident occurred on November 25, 2018, and the second on January 1, 2019. Megan Specia & Rick Gladstone, Border Agents Shot Tear Gas into Mexico. Was It Legal?, N.Y. Times (Nov. 28, 2018), at https://www.nytimes.com/2018/11/28/world/americas/tear-gas-border.html; Alan Yuhas, U.S. Agents Fire Tear Gas Across Mexican Border, N.Y. Times (Jan. 1, 2019), at https://www.nytimes.com/2019/01/01/world/americas/migrants-border-tear-gas.html.

24 Mex. Secretaría de Relaciones Exteriores Press Release, Mexico Asks for an Investigation into Incident at Tijuana-San Diego Border (Jan. 3, 2019), at https://www.gob.mx/sre/prensa/mexico-asks-for-an-investigation-into-incident-at-tijuana-san-diego-border.

25 Proclamation No. 9822, 83 Fed. Reg. 57,661 (Nov. 9, 2018) [hereinafter Entry Suspension Proclamation].

26 Id.

27 Id.; Proclamation No. 9842, 84 Fed. Reg. 3665 (Feb. 7, 2019). By its terms, the suspension would end earlier if the United States reached a deal with Mexico to allow asylum seekers to seek asylum in Mexico rather than the United States. Entry Suspension Proclamation, supra note 25; see also 8 U.S.C. 1158(a)(2)(A) (limiting asylum protections where the United States had an international agreement with a “safe third country” that would take in the asylum seekers).

28 8 U.S.C. § 1182(f).

29 Trump v. Hawaii, 138 S. Ct. 2392 (2018). For more details, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 741 (2018).

30 Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018) [hereinafter Asylum Ban Interim Rule].

31 Id.

32 Complaint for Declaratory and Injunctive Relief, E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST (N.D. Cal. Nov. 9, 2018), available at https://www.splcenter.org/sites/default/files/al_otro_lado_v._trump_administration.pdf [hereinafter Asylum Lawsuit Complaint].

33 Id. at 17.

34 8 U.S.C.A. § 1158(a)(1) (emphasis added).

35 Asylum Lawsuit Complaint, supra note 32, at 1.

36 The APA requires federal agencies promulgating substantive rules to publish a “[g]eneral notice of proposed rulemaking” and allow for a comment period. 5 U.S.C. § 553(b)–(c). The APA further requires that the effective date of any substantive rule be delayed thirty days from the date of its publication. Id., § 553(d). The government did not follow these procedures, but claimed exemptions from these requirements under the “military or foreign affairs function” exception of § 553(a)(1) and the “good cause” exemptions contained in § 553(b)(B) and § 553(d)(3). E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, 349 F. Supp. 3d 838, 846 (N.D. Cal. Nov. 19, 2018) [hereinafter Asylum Lawsuit TRO Decision]

37 Asylum Lawsuit Complaint, supra note 32, at 17.

38 Asylum Lawsuit TRO Decision, supra note 36.

39 Id. at *1; see also id. at *16–*17 (also finding “serious questions” with respect to whether the APA exceptions were available to the government).

40 E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1246 (9th Cir. 2018) [hereinafter Ninth Circuit Decision Regarding a Stay].

41 E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, __ F. Supp. 3d __ 2018 WL 6660080 (N.D. Cal. Dec. 19, 2018).

42 White House Press Release, Statement from the Press Secretary (Nov. 20, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-41 [https://perma.cc/3MUF-99Q9].

43 White House Press Release, Statement from the Press Secretary (Dec. 19, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-43 [ https://perma.cc/T73P-SMDX].

44 Trump v. E. Bay Sanctuary Covenant, No. 18A615, 2018 WL 6713079, at *1 (U.S. Dec. 21, 2018) (noting that Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the stay application).

45 Ninth Circuit Decision Regarding a Stay, supra note 40, at 1249.

46 UN Treaty Collection, Depository Status for the Protocol Relating to the Status of Refugees, at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=V-5&chapter=5&lang=en; see also 114 Cong. Rec. 29577, 29607 (1968) (documenting the Senate's resolution of advice and consent).

47 United Nations Protocol Relating to the Status of Refugees, Art. 1(1), Jan. 31, 1967, 606 UNTS 267 (incorporating United Nations Convention Relating to the Status of Refugees, Art. 31(1), July 28, 1951, 189 UNTS 150).

48 Id. (incorporating UN Convention Relating to the Status of Refugees, Art. 32(1)).

49 Id. (incorporating UN Convention Relating to the Status of Refugees, Art. 33(1)).

50 UN High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Access to Protection and a Connection Between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries, para. 2 (Apr. 2018), at https://www.refworld.org/docid/5acb33ad4.html.

51 Id., para. 7.

52 See supra note 27 (discussing the applicable INA provision); Joshua Partlow & Nick Miroff, U.S. and Mexico Discussing a Deal That Could Slash Migration at the Border, N.Y. Times (July 10, 2018), at https://www.washingtonpost.com/world/the_americas/us-and-mexico-discussing-a-deal-that-could-slash-migration-at-the-border/2018/07/10/34e68f72-7ef2-11e8-a63f-7b5d2aba7ac5_story.html?utm_term=.6d607da46f13.

53 Azam Ahmed & Kirk Semple, Mexico Mulls Allowing Migrants to Stay There Pending U.S. Asylum Bids, N.Y. Times (Nov. 24, 2018), at https://www.nytimes.com/2018/11/24/world/americas/mexico-migrant-crisis.html.

54 Id.

55 8 U.S.C.A. § 1225(b)(2)(C).

56 U.S. Dep't of Homeland Security Press Release, Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018), at https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration [https://perma.cc/7B8P-EL2D].

57 Nick Miroff, Kevin Sieff & Mary Beth Sheridan, Trump Administration Reaches Deal That Will Force Asylum Seekers to Wait in Mexico as Cases are Processed, DHS's Nielsen Says, Wash. Post (Dec. 20, 2018), at https://www.washingtonpost.com/world/national-security/dhs-secretary-kirstjen-nielsen-to-face-questions-from-lawmakers/2018/12/20/f7d2ffea-0460-11e9-8186-4ec26a485713_story.html (stating that “Mexican officials insisted the policy did not amount to an agreement, but was instead being imposed on them by the United States”).

58 Id.

59 U.S. Dep't of Homeland Security Press Release, Migrant Protection Protocols (Jan. 24, 2019), at https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols [https://perma.cc/BX43-5P6B].

60 Richard Gonzales, Trump Administration Begins “Remain In Mexico” Policy, Sending Asylum-Seekers Back, NPR (Jan. 29, 2019), at https://www.npr.org/2019/01/29/689819928/trump-administration-begins-remain-in-mexico-policy-sending-asylum-seekers-back.

61 Complaint for Declaratory and Injunctive Relief, Innovation Law Lab v. Nielsen, No. 19-CV-00807 (N.D. Cal. Feb. 14, 2019), available at https://www.splcenter.org/sites/default/files/2019.02.14.0001_compl._for_decl._and_inj._relief.pdf.

62 Id., paras. 49–71.

63 Id., paras. 147–81; see also id., para. 172 (observing that the “prohibition on refoulement is a specific, universal, and obligatory norm of customary international law”).

64 The Flores Settlement is a 1997 consent decree that prescribes minimum standards for the treatment of minors in immigration custody. Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 7, 1997), available at https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf.

65 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486 (proposed Sept. 7, 2018). Prior to this proposed rulemaking by the Department of Homeland Security, the Department of Justice had attempted unsuccessfully to use litigation to revoke aspects of the Flores Settlement. Order Denying Defendants’ “Ex Parte Application for Limited Relief from Settlement Agreement” at 7, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 9, 2018), available at https://www.aila.org/File/Related/14111359ac.pdf.

66 Matter of A-B-, 27 I. & N. Dec. 316, 317, 320 (2018). This administrative adjudicatory decision reversed an Obama-era ruling on this issue. See id. at 317.

67 Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018).

68 Jessica Taylor, Trump Signs Short-Term Bill to End Government Shutdown, But Border Fight Still Looms, NPR (Jan. 25, 2019), at https://www.npr.org/2019/01/25/688414503/watch-live-trump-addresses-shutdown-from-white-house-rose-garden.

69 Proclamation 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019); see also Scott R. Anderson & Margaret Taylor, What Authorities Is President Trump Using to Build a Border Wall, Lawfare (Feb. 15, 2019), at https://www.lawfareblog.com/what-authorities-president-trump-using-build-border-wall (discussing the legal nuances of this issue in detail).

70 Damian Paletta , Mike DeBonis, John Wagner, Amy B. Wang & Missy Ryan, Trump's Declaration of National Emergency Hit with First Lawsuits, Wash. Post (Feb. 16, 2019), at https://www.washingtonpost.com/politics/2019/02/16/trumps-declaration-national-emergency-faces-political-legal-challenges/?noredirect=on&utm_term=.daec82a8a58a (noting that within a day of this announcement one case had been filed challenging the decision on the merits, another case had been filed challenging transparency related to decision making, and still more challenges were in preparation).