A program can be established to offer refuge to asylum seekers being turned away from our border

United States Customs and Border Protection (CBP) has been turning away asylum seekers arriving at our land border with Mexico pursuant to the “Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists” from the Centers for Disease Control and Protection (CDC).

When CBP apprehends aliens in the vicinity of the border who have made an illegal entry, it processes them in the field and returns them to Mexico in an average of 96 minutes — without stepping foot in a border station.

Sen. Patrick Leahy (D-Vt.) and other democratic senators claim that this is contrary to federal law. They are wrong. The order is a proper exercise of CDC’s authority under the Public Health and Welfare Act.

Moreover, if the CDC order were to be invalidated, President Donald Trump could issue the same edict himself pursuant to his authority under section 212(f) of the Immigration and Nationality Act (INA).

The Supreme Court held in Trump v. Hawaii that section 212(f) “entrusts to the president the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The sole prerequisite to exercising this authority is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States. 

It would be better to find another way to help the asylum seekers

Six years ago, former president Barack Obama’s administration was trying to persuade parents in Central America that they shouldn’t send their children to the United States by themselves.

More than 50,000 unaccompanied alien children from El Salvador, Guatemala, and Honduras had made the perilous journey from Central America through Mexico to the United States on buses and on so called “death trains” to apply for asylum here.

Obama’s DHS Secretary, Jeh C. Johnson, posted an open letter telling parents that, among other things, the criminal smuggling networks they were paying to take their children to the United States had no regard for the children’s safety and well-being. He claimed that in the hands of these smugglers, many children were being traumatized and psychologically abused — and some were beaten, starved, sexually assaulted or sold into the sex trade. 

Johnson acknowledged that parents were doing it because they wanted their children to have a better life in the United States, but he observed that the risks of illegal migration by unaccompanied children to achieve that dream were far too great.

My solution 

The United States did not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala, and Honduras. Their plight was an international problem.

I proposed asking the UN Refugee Agency (UNHCR) to process Central American children for refugee status at safe locations near their home countries. This would have eliminated the need to make the perilous journey to the United States to seek relief from persecution.

A “refugee,” according to Section 101(a)(42) of the INA, is an alien who has experienced past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 

Children who met that definition could have been brought to the United States as refugees.

The United States has an annual limit to the number of refugees it will accept, but if there were no refugee admissions numbers available for them, Obama could have increased the annual refugee admissions limit with his emergency powers in section 8 USC § 1157(b) of the INA.

And UNHCR could have tried to place the rest of them in other countries.

The prospect of a better life could be possible that way — without the dangers of human trafficking.

Obama goes in a different direction

In September 2014, the Obama administration established an in-country refugee processing program for children from El Salvador, Guatemala, and Honduras pursuant to his authority under the INA. It was known as the “Central American Minors” (CAM) program.

But this program was too restrictive to provide a meaningful alternative to making the journey to America to seek relief from persecution.

It only allowed parents who were lawfully present in the United States to request a refugee resettlement interview for their unmarried children under the age of 21 who were in El Salvador, Guatemala, or Honduras.

And Obama did not authorize additional refugee admission numbers for the participants.

On July 26, 2016, he expanded the program to include some additional family members, but this did not expand participation enough to make the program effective as an alternative to coming to America for relief from persecution.

What’s more, the vast majority of people using the CAM program were not able to establish eligibility for refugee status.

The State Department replaced the CAM program in fiscal 2018 with the more targeted refugee processing of the Protection Transfer Arrangement (PTA) that the United States had with the Government of Costa Rica, UNHCR, and the International Organization for Migration (IOM).

The PTA program pre-screened a small number of Salvadoran, Honduran, and Guatemalan applicants who had a heightened risk of persecution and transferred some of them to Costa Rica, where they were interviewed by USCIS and considered for resettlement in the United States.

What should be done now

The CAM program wasn’t available to enough people to provide an effective alternative to coming here for relief from persecution, but it didn’t have to be so restrictive.

A new program for in-country refugee processing could be established that would be open to everyone in participating countries, and it wouldn’t have to be limited to El Salvador, Guatemala, and Honduras.

This may not sound like a realistic possibility with a Trump administration that has drastically reduced refugee admission numbers, but it could be desirable from an enforcement standpoint too. Making relief from persecution available to asylum seekers — through the UN — in their own countries could provide an attractive alternative to coming here to apply for asylum.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.