The President's Illegal Asylum Bar

Off the Record Podcast Excerpt
November 14, 2018
Post intro excerpt

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MALANEY: And although this is a few episodes behind where I originally said it was going to happen, finally Dina is here!

DW: Dina is here, but I was promised cheesecake

MALANEY: I was lying

DW: I’m leaving

MALANEY: I know that’s such an empty threat because there is nothing you love more than talking circles about asylum law

DW: and cheesecake

MALANEY: remember when Philadelphia used to have those cheesecake bars?

DW: I… I .. I do not remember that, but I am concerned about the words “used to”

MALANEY: I haven’t seen them for years, but I can make you cheesecake bars.

DW: We will uh… we’ll return to that subject privately for sure.

MALANEY: Ahaha okay. Okay. Getting on with things, so I promised you would come on to talk about some immigration news… last week, you bailed---

DW: I had a work thing uhh because, well, you guys may have heard on Thursday that the Trump administration barred asylum eligibility from any person, including children who don’t enter a port of entry. This is OBVIOUSLY illegal. It is a distinction that is fucking stupid and the news outlets did a really terrible job in explaining this and trying to make it seem really reasonable and not a big deal

MALANEY: Okay, so, okay first, explain, can you explain why… okay, explain what the president did exactly, and then explain why it matters, and then why it violates the law

DW: and the Universal Declaration of Human Rights adopted at the U.N. that we are a signatory on. So the first thing that happened is the president issued a proclamation and executive order that said any person, including an unaccompanied child who crossed the southern U.S. border outside of a port of entry after November 9, 2018, is ineligible to apply for or be granted asylum relief. Side note, that they are still eligible for non-discretionary forms of relief but the standards are significantly higher and is much harder to get, and you don’t get any benefits or rights from that like you do with asylum. I would explain those further, but it can be very confusing but the two other forms of relief are, withholding of removal, and convention against torture or CAT protection.

MALANEY: Okay, so, you were really mad watching the news this weekend, because you thought people were missing kind of an obvious point, but like to a non—a person who doesn’t practice immigration law, why is requiring someone to apply for asylum at a port of entry a bad thing?

DW: Ugh. Well it’s one of those things that is a distinction without a difference. Like it doesn’t matter how someone fleeing persecution got to the United States, we’re not supposed to consider BECAUSE they are fleeing persecution so they may do things that they would not normally do, for safety reasons, and because GPS doesn’t work in the desert, and a lot of people who seek entry at the Southwest border, especially unaccompanied minors, do so on foot, and the routes aren’t on maps. So the idea that a lost child, dehydrated and delirious from their journey who stumbles, and I mean can literally stumble over the border and be found by border patrol, the idea that his asylum claim cannot be heard because of that is plainly absurd and cruel.

The next thing is that wait times for entry at a port of entry are over a month long, people have to camp outside the ports of entry, they are told “there is no room” and turned away, which is also against the law, and the ports are deliberately under staffed to turn people away. People act like there are millions of people clawing at so called door of our southern border to get in, and that’s just not true. The majority of immigration cases that are being processed through the immigration court are people who overstay their visas, and tons of people who overstay their visas are Canadians. But yeah, there’s not like a crisis or anything, there was in the early 2010s a massive migration of 12 to 15 year olds who were showing up alone and many of those kids are still in federal custody as their cases slowly move through the immigration court system.

AND, sorry, I know this is long, but, but, I just want to point out this one obvious thing, that a lot of news stories that came out about this said things like “immigrants who cross the southern border illegally” New York Times…. Or “enter US illegally” CNN…. Uhm, if you cross a border to present yourself for asylum that is not an unlawful entry. It’s what you are supposed to do. And a very small fraction of people will qualify for asylum, significantly less since Obama left office as gang violence is no longer a a ground for asylum and many of these people are fleeing gang violence, but also note that in the caravans of people there were larges numbers of LGBT persons who will probably qualify depending on their experiences.

MALANEY: Wow I can’t believe I let you talk for that long.

DW: Me either!

MALANEY: Can you repeat that? I was looking up Stromboli recipes

DW: I will take that to go with my cheesecake, thanks.

MALANEY: So a lawsuit was filed…

DW: Yeah like the same day. The ACLU and other important rights organizations sued the administration, and they argued this clearly violated federal law as is states directly in the Immigration and Nationality Act which is where all our immigration laws come from, that a person is not barred from asylum just because they entered without inspection... that means not at a port of entry.

MALANEY: Okay, so it will probably get … overruled?

DW: So not overruled, but a stay would be issued to stop its enforcement, or it would be struck down, my guess is, is that this case is going to go to the Supreme Court, and I am not thrilled about that because, every federal court and appeals court who reviewed the Muslim travel ban executive order found that it was a clearly unconstitutional and denied people due process, and the Supreme Court didn’t… in a split decision… so things are illegal here until they aren’t, right?

Every lower court in this country could read the INA and the new asylum bar EO and say they are in direct conflict and the EO cannot override congress, that’s a constitutional issue that is enshrined in our laws, but the Supreme Court could just change it or make some bullshit national security argument like they always do… so… so you know… I think the case against the EO is really strong, I can’t imagine a court ruling against it, but I can easily imagine SCOTUS uh changing things. Let’s not forget it was Judge Kavanaugh who thought a 15-year-old immigrant rape victim couldn’t seek an abortion in federal custody.

MALANEY: You’re so optimistic

DW: I mean there are still over 100 kids separated from their parents since June, and a lot of those parents were deported without their children, and some of them unfortunately may have be dead, because they were fleeing serious unimaginable violence and were deported before the ACLU won their class action lawsuit to make sure every parent and child had an asylum hearing, so uhm, it sucks. We also have like almost one million DACA recipients who handed over their addresses and information to the federal government who if SCOTUS allows the president to end DACA, they can hand information over to ICE, and none of them are eligible for asylum or adjustment or really anything, that’s why we needed DACA.

MALANEY: [loud sigh]

DW: I think one thing that was kind of overlooked during the family separating atrocity is that immigration laws, or well deportations and removals separate and break up families all the time. And as the enforcement priorities have changed between administrations you have seen an uptick families being broken up to become international families by force.

MALANEY: So.. there’s your super depressing immigration update from Dina.

DW: Yeah that’s all I am good for, but BUT, if you are looking to feel optimistic, after the family separation policy lawyers from all around the country have been working so hard to hold these monsters accountable, and we are challenging their bullshit left and right and importantly we are winning in all the lower courts. And we have won a few really big immigration issues at SCOTUS too.

MALANEY: Well, you’ll be here to keep us updated right?

DW: Depending on what you bribe me with, yes…

MALANEY: Okay okay, we have other stuff to do since you don't get a full episode anymore because you were late, uh, you can follow Dina on twitter at DWWS, she retweets A LOT of immigration stuff and also a lot of Chrissy Teigen's stuff. Importantly, you can tweet at her now for all the questions you have for her instead of at me about it

DW: I feel like Chrissy Teigen and I have so much in common, we both are awesome and like we both have famous spouses but we're so much cooler than them...

MALANEY: and you both were uh swimsuit models for sports illustrated?

DW: Yeah, well, she was in it, and I read it... er looked at it? Would you buy one of those issues if I was on it?

MALANEY: what would I need it for?

DW: special 'women who eat cheesecake' edition...

MALANEY: I feel like I would rather just buy a magazine filled with pictures of cheesecakes

DW: oh yeah, I want that too. Okay, okay, you're going to cut from before the Chrissy talk right?

MALANEY: probably not because I am on a tight deadline so you know pick your words carefully

DW: [groaning] could you have given me a heads up earlier? Now that I twitter, I uhh, I am all done now.