The President’s Proposal to Eliminate Due Process at the Border
In a series of recent tweets, President Trump offered an extreme proposal concerning due process at the U.S. southern border: abolish it.
As Mr. Trump put it, “[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” He urged, in other words, the summary deportation of all arriving immigrants, irrespective of the persecution they escaped or their right—clearly articulated under domestic and international law—to seek asylum in the United States.
That is a dark vision. And yet, the line separating this vision from reality already runs thin. Our government affords minimal due process to the vulnerable individuals—often women and children fleeing imminent harm in Central America—who reach our border. The Department of Homeland Security (DHS) frequently processes these noncitizens through the “expedited removal” system, a fast-track to deportation that bypasses immigration courts. In most cases, the government deports people subject to expedited removal before they speak with an attorney or see an immigration judge.
Although the expedited removal process is supposed to contain safeguards for persons who fear persecution in their countries of origin, they are both meager and poorly observed. Examples teem of Customs and Border Protection (CBP) officers ignoring asylum seekers’ expressions of fear of returning to their home countries or even coercing them into abandoning their asylum claims. Those who manage to advance beyond CBP must undergo a “credible fear” interview with an asylum officer from United States Citizenship and Immigration Services (USCIS). When creating the credible fear interview process in 1996, Congress intended it to serve as a preliminary, low-threshold screening to ensure that bona fide asylum applicants would receive a full hearing with an immigration judge. But last week the administration set a draconian bar to establishing a “credible fear,” making it even harder for asylum seekers to receive protection. Meanwhile, as they work their way through these procedures, many of these men, women, and children confront the horrors of family separation and detention, while grasping for legal counsel in a system void of any right to a government-appointed lawyer. Not even children are guaranteed counsel; four and five-year-old girls and boys often must represent themselves in immigration court.
Sometimes, CBP won’t even allow vulnerable immigrants into ports of entry. According to reports, CBP engages in systematic “turnbacks” of many asylum seekers at the border, returning them immediately to Mexico without asking whether they fear persecution there or elsewhere. This practice is not only illegal, it’s dangerous, as revealed in accounts of individuals dispatched to their home countries, only to face harm or even death.
In view of such barriers to relief, government leaders should strengthen due process protections at the border—not undermine them. Instead, the president is championing the transformation of these turnbacks—unlawful acts with lethal consequences—into the official policy of the United States of America. Under this model, a journalist fleeing political persecution would face instantaneous return, regardless of the peril. A domestic violence victim would get forced, without any chance to present her claim, back into the arms of her abuser.
This wouldn’t be rule of law. It’d be rule without law.
For numerous reasons, legal, political, and otherwise, Mr. Trump is unlikely to realize his vision in full. But that doesn’t mean we should dismiss these tweets—not by any measure. Every day, administration officials are making efforts to further erode due process rights at the border. Those endeavors include negotiations aimed at declaring Mexico a “safe third country,” a designation that would preclude most Central Americans who reach the United States through Mexico from applying for asylum here. And in a February 2017 memo, DHS asserted its authority to broaden the application of expedited removal to certain noncitizens without documentation encountered anywhere in the United States who cannot establish continuous presence in the country for two years. If implemented, this change would effectively turn the nation as a whole into a border zone—due process deprivations included.
Mr. Trump’s tweets are, quite literally, “official statements by the President.” As a nation of immigrants, bound together by the Constitution, we cannot let official statements that assault the due process rights of noncitizens go unchallenged. We must continue to stand up to these attacks, oppose maneuvers to strip safeguards for the vulnerable, and work to ensure that every individual fleeing persecution who arrives at the U.S. border receives a full and fair opportunity to pursue protection on our soil. After all, unlike the president’s tweets, the right to seek asylum is far from an extreme proposal—it’s the law of the land.