Ending an abuse of asylum laws

Just as President Clinton once infamously responded under oath that his answer depended on what the meaning of “is” is, so the Supreme Court’s decision last week on the Trump Administration’s policy on how to handle asylum seekers at the border depended on what the meaning of “in” is.

Justice Samuel Alito’s majority opinion for the Court followed the dictionary definition of “in.” The statute in question, the Immigration and Nationality Act of 1952, states that an alien from another nation who “arrives in the United States” is to be inspected by border officials, and as part of that process for seeking admission to the country, may apply for asylum.

But arrival at the border is not the same as arrival in the United States, the Court held. Until you cross the line, you are “in,” say, Mexico. And if the border patrol officer turns you away at the line, then you have never been an alien “in” the United States and therefore have no right to seek admission and apply for asylum. So, the Court held, the Department of Homeland Security did not violate the Act when it announced a policy that the United States would only process so many asylum seekers per day per point of entry and refuse entry to all others (a policy known as “metering”). The asylum seekers were never “in” the United States and therefore never had a right under the statute to apply for asylum.

In dissent, Justice Sonia Sotomayor is disgusted that “[t]he Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U.S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U.S. soil.” Imagine what she would think of a wall that physically blocks noncitizens from setting a foot on U.S. soil!

“Metering” at the border grew out of an unexpected crush of persons without papers at a single port of entry near San Diego, California. The Border Patrol staff would turn away persons without papers if the lines were too long to process them, directing them to return later or scheduling appointments (one might say telling them to remain in Mexico until their appointment). Eventually the system spread to other ports of entry and then was formalized.

It should be unremarkable that the Border Patrol had the power to deny entry to persons it could not process during its normal business hours—the Immigration Act certainly does not contain a provision mandating that the Border Patrol keep certain office hours. The metering concept grew out of that reality, that only so many persons could cross the border and complete the process in a single work day, even if metering eventually evolved into a policy that allowed the administration to turn away large numbers of aliens before entry.

That policy reflected a deeper problem: Asylum is too often abused to facilitate the flood of aliens into our country. All too frequently, an alien at the border claims asylum and is let “in” and then disappears into the interior and never finishes the asylum process. In doing so, he or she becomes an illegal immigrant, but without a meaningful threat of deportation (just like people who overstay their work, education, or tourist visas). Thus, the first Trump administration had a valid policy justification for carefully enforcing the statutory terms of the Immigration Act to minimize misuse of the asylum process.

As people of faith, it’s important to recognize that asylum is a vital tool for persecuted believers to escape dangerous, even deadly situations in their home countries to reach the United States. Unfortunately, the abuse of asylum has greatly frustrated American citizens, and it led the Trump administration to understandably impose limits on its use (though let’s be honest—few authentic victims of religious persecution show up at our southern border coming from South American countries).

People of faith have a special reason, then, to end abuse of the asylum process so that proper use of this tool can be restored for genuine victims of persecution. For now, though, the Supreme Court’s ruling implements the plain terms of immigration law and allows the administration to maintain the sovereignty of our nation’s borders.