November 10, 2018

Political Asylum Imbroglio: Trump’s Latest Fiat by Tantrum.

by Hal Gershowitz

Comments Below

Of Thee I Sing Heading AuthorsIt is crude, meanly formulated and contrary to the letter and spirit of the law. That’s our take on President Trump’s hastily conceived executive order trashing our political asylum laws. The descendants of immigrants from Europe and other points of origin fleeing persecution in the nineteenth and twentieth centuries should rise up in anger at President Trump’s latest fiat by tantrum.

 Yes, yes, we understand that we have to control our borders and that there are abuses among those who might claim political asylum. But we have processes and procedures for adjudicating political asylum cases and those processes and procedures work. Nearly all applications for political asylum are turned down because it is very hard to demonstrate a well-founded fear of persecution should the applicant return to any place in his or her country of origin. That means we have to vastly strengthen our ability to process, assess and act on applications for asylum. And we have every right to prosecute and remove those who violate our laws. It doesn’t mean the President can unilaterally tear up the letter of the law, nor can he unilaterally emasculate the spirit of the law.

 Here is what the law says: any foreigner who arrives in the U.S. – “whether or not at a designated port of arrival” may apply for asylum. And that is what the law should say. People fleeing persecution or chronic, targeted, government-instigated or condoned danger (and those are, by and large, the only people entitled to political asylum) should be allowed to find the nearest safe harbor.

 And speaking of safe harbors, we think there is some analogy to political asylum law and maritime law—not in the letter of the law but in the spirit of the law. “a master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s vessel…”Our political asylum law simply says that any soul seeking political asylum is entitled to his or her day in court. It doesn’t say he or she is entitled to asylum.

 We acknowledge that claims for asylum are not always legitimate, and facilities for processing asylum claims are often overburdened. That reality doesn’t give the President the right to tear up the law, it means he has to demonstrate the leadership to vastly improve how we administer the law as well as the leadership required to secure the resources to implement the law. Failing that, the President can lead the effort to change the law.  What he cannot do is ignore the law, or make up his own law. The legislative branches of our government make our laws. The executive branch faithfully executes and enforces our laws. That’s not a suggestion, that’s what our constitution requires.

Ironically, President Trump’s order requiring political asylum seekers to make their way to a designated point of entry will simply overburden facilities that the Administration acknowledges are already seriously overburdened.

 Our political asylum laws are tough. Claiming political asylum is a very difficult way to secure permanent entry into the United States. Nearly nine out of ten petitions for political asylum from Mexico and Central America are rejected. Relatively few applications for political asylum are granted.  A total of 30,179 cases were decided by judges last year, a marked increase from 22,312 cases in FY 2016. This is the largest number of asylum cases decided in any one year since FY 2005. While asylum grants increased, denials grew even faster.

 Trump’s so-called zero tolerance policy directed at those who show up at our border makes a mockery of existing law. But we know mockery is the hallmark of Trumpian discourse. He luxuriates in telling us that any law or policy he doesn’t like is the dumbest, stupidest law or policy imaginable.

His attack on our political asylum laws is also remarkably ignorant. Worse, it criminalizes an otherwise legal, narrow path to asylum. Trump’s minions scream that asylum seekers should stay home and apply at a U.S. consulate or embassy for asylum, thereby revealing both their callousness and their ignorance of our asylum laws. US asylum law requires that an applicant be physically present in the United States in order to apply for political asylum.

 President Trump is relying on his authority to suspend certain laws that are not to his liking by claiming that they are not in the national interest. Such a claim by any president, and especially this president, should be viewed with extreme trepidation. Such law-making by fiat was what enabled another President in another time to incarcerate tens of thousands of American citizens simply and only because they were of Japanese descent.

Today, President Trump is attempting to employ that same rationale to turn our long-standing political asylum laws upside down. His use of such authority (suspending laws he deems not to be in the public interest) is a step down a very slippery slope, and likely represents an even greater danger to the United States, than to those seeking safe haven in America.

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6 responses to “Political Asylum Imbroglio: Trump’s Latest Fiat by Tantrum.”

  1. Hal Gershowitz says:

    System test.

  2. Judy says:

    Hal, As to system check, did you receive this? I noticed there are no comments and you received my view

  3. Paul Silverstein says:

    Before castigating President Trump for his stance on asylum as being, ” meanly formulated and contrary to the letter and spirit of the law”, please remember that another President did similar things and was not roundly castigated. That icon of liberals, FDR, employed similar tactics which you make no reference to. In June 1939 the US government turned away the German liner St, Louis and it’s 937 mostly Jewish passengers who were who were seeking asylum and were forced to return to Europe and their ultimate death in the Holocaust. Similarly, in 1942 hundreds of Jewish refugees aboard the SS Drottningholm who were also seeking asylum from the Nazis were again turned away by the US which was approved by FDR.
    Please also recall that FDR, by Executive Order in 1941, more than 110,000 Japanese Americans were relocated to remote internment camps built by the U.S. military in scattered locations around the country depriving them of their freedom.
    Before making such strident claims about our current president it’s important to put his thoughts into a historical and contextual perspective.

  4. Hal Gershowitz says:

    Dr. Silverstein is absolutely correct. While we did comment on the Executive Order signed by FDR that resulted in the incarceration of tens of thousands of innocent American citizens of Japanese descent, we should have also referenced the cold shoulder FDR accorded Jews fleeing Nazi persecution.

  5. Judy says:

    While I agree with your recount of history, I do not agree that we “rise up in anger against President Trump”. I believe encouraging anger against our leaders is detrimental to us, the American Citizens.

  6. Hal Gershowitz says:

    It is the President’s POLICY to which we object. That said, we agree that “protest” would have been a better word than “anger.”

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