Jurisprudence

Trump’s New Asylum Policy Is the Definition of Entrapment

Migrants walk down a road beside a road sign that says Tecate 105.
Migrants who are part of the migrant caravan make their way to Tijuana, Mexico, on Tuesday near Mexicali.
Mario Tama/Getty Images

President Donald Trump is continuing his assault on basic humanitarian protections at the U.S.-Mexico border. In recent days, the president has sent thousands of troops to the border to string miles and miles of barbed wire, overseen U.S. Customs and Border Protection’s decision to close ports of entry, and ratified CBP’s plan to “evict” 450 asylum-seekers marooned on bridges connecting El Paso, Texas, and Ciudad Juárez, Mexico. Trump’s latest tactic might be his most inimical: He ordered an interim final rule to deny asylum to anyone who has crossed in between ports of entry along the Southern border. While this order has already been blocked by the courts for the time being, this latest tactic fits right in line with the administration’s larger goal of criminalizing migration.

The reality is that potentially thousands of migrants cross “illegally” because the U.S. Customs and Border Protection systematically and unlawfully rejects their asylum attempts at official ports of entry. Asylum-seekers have no meaningful choice otherwise. For at least the past two years, brazen CBP misconduct has led to mass migrant prosecution under federal “illegal entry” and “illegal re-entry” charges. Thanks to former Attorney General Jeff Sessions’ prioritization of the issue, 2018 saw entry-related arrests skyrocket with nearly 60 percent of all federal criminal prosecutions having been immigration-related. As of June, in the five federal districts along the Southwest border, only 6 percent of all prosecutions were for anything other than immigration offenses. Indeed, the Justice Department openly admitted it was diverting resources from drug-smuggling operations to incarcerate migrants. This has clearly been part of a broader political strategy of vindicating President Donald Trump’s xenophobia: The Trump administration’s nativist rhetoric is more effective when our immigrants are manufactured into criminals, not portrayed as tired, huddled masses of refugees.

This practice of criminalizing asylum attempts is also a classic case of entrapment. Systematically rejecting destitute asylum-seekers at the border and stranding them in life-threatening border towns forces these individuals to cross unlawfully. As counsel in borderwide federal challenges to this policy and practice, Al Otro Lado v. Nielsen and now East Bay Sanctuary Covenant v. Trump, I’ve seen what happens firsthand to individuals whom the U.S. government turns away and strands in Mexico. My clients—all of whom stated a fear of return to their home country—wanted to present at a port of entry but were turned away. CBP officers told one client that “President Trump signed a new law that ended asylum in the United States,” and another was promised that “government officials would take their children away.” The former statement is a lie—Trump has signed no such law—but the later threat proved tragically true during Trump’s infamous child separation policy. The threat itself has continued to be wielded against asylum-seekers, even though the U.S. says it has ended the policy.

The recent interim rule to deny asylum to anyone who crosses the border “illegally” won’t have its intended deterrent effect. It’s just an added punitive measure. As a journalist for the Marshall Project has reported, U.S. officials are making “clear they’re in no hurry to place extra border or asylum officers at ports of entry,” and that the strategy is “to create even bigger asylum bottlenecks, back-ups at entry stations.” Migrants marooned in Texas report waits upward of two weeks due to CBP caprice or antipathy; the wait is upward of three weeks in Tijuana. As Texas Monthly noted, up to 450 asylum-seekers were recently camped out on three bridges between El Paso and Ciudad Juárez. That’s only going to get worse.

Many asylum-seekers waiting at ports of entry—destitute, without resources, and with young children in tow—are forced to live at makeshift encampments. Many fall prey to cartels and are regularly assaulted and even killed. By callously stranding individuals outside of ports of entry in horrid, perilous conditions, the U.S. is treating migrants as flotsam. On a recent trip to the border, I met with a group of Central American LGBTQ youth who told me that on each day, for five consecutive days, CBP refused to let them apply for asylum. When I told them it was lawful to present at a port of entry to ask for asylum, they replied, “That’s what we told CBP!” Each day they were rejected, they say CBP told them the same thing: “Guatemalans make us sick.” Turned away by CBP again and again, these asylum-seekers were ultimately forced to enter outside of a port of entry and thus saw their asylum claims criminalized.

This consequence is intentional and stems from Sessions’ April 6 “zero-tolerance policy.” That policy instituted Trump’s Jan. 25, 2017, executive order directing the Justice Department to make criminal prosecution of immigration offenses a “high priority.” Blithely, Sessions famously urged individuals simply to “wait their turn.” The recent exhortations regarding “proper” entry point—which Sessions deemed “the right way”—are meritless. Not only are they in stark contrast to federal law—according to 8 U.S.C. Section 1158, asylum is available regardless of “whether or not” an individual entered “at a designated port of arrival”—but it will now be virtually impossible to seek asylum lawfully. Whether turned away from a point of legal entry by CBP or forced to wait and possibly perish, individuals have been and will continue to be forced to swim across the mercurial Rio Grande or traverse on foot through the border’s vast terranean hellscape. If history teaches us anything, when the migrant caravan reaches the border, CBP will clearly induce scores of individuals to commit “crimes” of illegal entry and re-entry, entrapping them.

Under Trump’s latest policy, the U.S. is criminalizing potentially thousands of individuals who have arrived at our nation’s doorstep seeking asylum. Worse still, the U.S. knows that these individuals are here to seek asylum; the criminalization is intentional. By instituting the zero-tolerance policy, the Justice Department is able to instantiate Trump’s long-held ethnological worldview that Central American and Mexican individuals are criminals. Rather than receive “tired, huddled masses,” the administration is able to cast them as hardened offenders, “bad hombres.” In this way, it is merely the administration’s latest attempt to shirk its humanitarian obligations in favor of completely unnecessary, punitive, and spiteful federal policy.