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Published online by Cambridge University Press: 09 April 2019
The Trump administration undertook a variety of actions related to the southern U.S. border in late 2018 and early 2019. Pointing to the progress of thousands of migrants traveling together from Central America to the U.S. border, President Trump deployed troops to the border and issued a proclamation providing that access to asylum would only be available at the southern border to those who entered through an authorized port of entry. Legal challenges to this proclamation and its implementation by the Department of Homeland Security (DHS) immediately followed, and a federal district court issued a temporary restraining order on November 19 and a preliminary injunction on December 19 against its enforcement. In addition, after ongoing negotiations with Mexico, the Trump administration announced that it would implement an arrangement under which asylum seekers would await their court date in Mexico rather than the United States. These ongoing developments are part of broader attempts by the Trump administration to erect barriers to migration across the southern border.
1 Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).
2 Jeff Sessions, Office of the Attorney General, Memorandum from the Attorney General to Federal Prosecutors Along the Southwest Border (Apr. 6, 2018), at https://www.justice.gov/opa/press-release/file/1049751/download [https://perma.cc/QN2C-NLSD]. In a press release about the announcement, Sessions declared that “a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border … .” U.S. Dep't of Justice Press Release, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), at https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry [https://perma.cc/VZ8Z-6RZP].
3 Brian Naylor, DHS: Nearly 2,000 Children Separated from Adults at Border in 6 Weeks, NPR (June 16, 2018), at https://www.npr.org/2018/06/16/620451012/dhs-nearly-2-000-children-separated-from-adults-at-border-in-six-weeks. For additional context about the separation of families under the zero-tolerance policy, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 745, 748–49 (2018).
4 See L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018) (issuing a preliminary injunction halting the practice of separating families at the border and ordering the government to reunite separated children with their parents in a designated time period).
5 Exec. Order No. 13,841, 83 Fed. Reg. 29435 (June 20, 2018).
6 Kirk Semple, What Is the Migrant Caravan and Why Does Trump Care?, N.Y. Times (Oct. 18, 2018), at https://www.nytimes.com/2018/10/18/world/americas/trump-migrant-caravan.html [hereinafter Caravan Article]. Taking to Twitter, Trump described the caravan as an “assault on our country” replete with “[m]any Gang Members and some very bad people” and threatened the governments of Honduras, El Salvador, and Guatemala that “if they allow their citizens, or others, to journey through their borders and up to the United States, with the intention of entering our country illegally, all payments made to them will STOP (END)!” Donald J. Trump (@realDonaldTrump), Twitter (Oct. 29, 2018, 7:41 AM), at https://twitter.com/realDonaldTrump/status/1056919064906469376 [https://perma.cc/8NUP-BV98]; Donald J. Trump (@realDonaldTrump), Twitter (Oct. 16, 2018, 6:19 PM), at https://twitter.com/realdonaldtrump/status/1052368431201341447 [https://perma.cc/RAY8-H6N8]; see also Donald J. Trump (@realDonaldTrump), Twitter (Oct. 18, 2018, 4:25 AM), at https://twitter.com/realdonaldtrump/status/1052883467430694912 [https://perma.cc/T4HX-48XL]. Rather than ceasing foreign aid to Honduras, El Salvador, and Guatemala, however, the Trump administration pledged on December 18 to invest $5.8 billion in these countries to “promote institutional reforms and development in the Northern Triangle.” U.S. Dep't of State Press Release, The U.S. Strategy for Central America and Southern Mexico (Dec. 18, 2018), at https://www.state.gov/r/pa/prs/ps/2018/12/288168.htm [https://perma.cc/KT4F-J9NC].
7 Caravan Article, supra note 6.
8 For an overview of the UNHCR’s involvement in Mexico with respect to the migrant caravan, see UNHCR Situation Update, Response to Arrivals of Asylum-Seekers from the North of Central America (Nov. 14, 2018), available at http://reporting.unhcr.org/sites/default/files/UNHCR%20Situation%20Update%20on%20NCA%20EN%20-%2014NOV18_0.PDF.
9 U.S. Dep't of State Press Release, Mexico Requests UNHCR Assistance to Process Migrants (Oct. 18, 2018), at https://www.state.gov/secretary/remarks/2018/10/286769.htm [https://perma.cc/NA27-BKLW].
10 IACHR Press Release, IACHR Expresses Concern Over the Situation of the “Migrant Caravan” from Honduras and Calls on the States of the Region to Adopt Measures for their Protection (Oct. 23, 2018), at http://www.oas.org/en/iachr/media_center/PReleases/2018/225.asp (further stating that “the IACHR rejects the use of stigmatizing and criminalizing language and unfounded accusations in reference to migrants and asylum seekers, which may encourage xenophobic attitudes against such persons”).
11 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 25, 2018, 4:05 AM), at https://twitter.com/realDonaldTrump/status/1055414972635926528 [https://perma.cc/L27S-SANP].
12 Jim Garamone, 5,200 Active-Duty Personnel Moving to Southwest Border, Northcom Chief Says, U.S. Dep't of Defense (Oct. 29, 2018), at https://dod.defense.gov/News/Article/Article/1675810/5200-active-duty-personnel-moving-to-southwest-border-northcom-chief-says [https://perma.cc/99CR-AJYX] [hereinafter Deployment Announcement]. Originally dubbed Operation Faithful Patriot, the mobilization was designed to “harden the southern border” and included, in addition to the troops, three combat engineer battalions, members of the U.S. Army Corps of Engineers, military helicopters, and military police units. Id.
13 On April 4, 2018, Trump signed a memorandum entitled “Securing the Southern Border of the United States” in which he asserted that “[t]he security of the United States is imperiled by a drastic surge of illegal activity on the southern border” and directed the secretary of defense to “support the Department of Homeland Security in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into this country.” Donald J. Trump, Memorandum on Securing the Southern Border of the United States, 2018 Daily Comp. Pres. Doc. No. 218 (Apr. 4). Trump authorized the Secretary of Defense to “request use of National Guard personnel to assist in fulfilling this mission” and to “use such other authorities as appropriate and consistent with applicable law.” Id.
14 Deployment Announcement, supra note 12.
15 Jim Garamone, DOD Officials Testify on Military Support to Southwest Border, U.S. Dep't of Defense (Jan. 29, 2019), at https://dod.defense.gov/News/Article/Article/1743120/dod-officials-testify-on-military-support-to-southwest-border [https://perma.cc/ZC34-R6RT] (quoting Joint Staff Director of Operations Michael Gilday).
16 Id. The Posse Comitatus Act states: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” 18 U.S.C. § 1385; see generally Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (Global War on Terrorism Paper 14, 1959), available at https://www.armyupress.army.mil/Portals/7/combat-studies-institute/csi-books/matthews.pdf (discussing the origins of the Posse Comitatus Act and the limits it places on military involvement in law enforcement operations).
17 Ron Nixon, Helene Cooper & Thomas Gibbons-Neff, Homeland Security Dept. Finds “Minimal” Risk to Border Guards, Undercutting Trump Plan, N.Y. Times (Nov. 20, 2018), at https://www.nytimes.com/2018/11/20/us/politics/military-border-patrol-migrants.html (quoting an internal CBP document).
18 James Laporta, Donald Trump Signs Authorization for Border Troops Using Lethal Force as Migrant Caravan Approaches, Document Reveals, Newsweek (Nov. 21, 2018), at https://www.newsweek.com/donald-trump-memo-migrant-caravan-border-troops-1226945 (including the full text of the memorandum).
19 Chairman of the Joint Chief of Staffs, Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, at 2 (June 13, 2005), available at http://www.jag.navy.mil/distrib/instructions/CJCSI%203121.01B13Jun05.pdf.
20 “Less-lethal force” is defined as “force that is not likely to cause serious physical injury or death.” U.S. Customs and Border Protection Office of Training and Development, Use of Force Policy, Guidelines and Procedures Handbook, at 3 (May 2014), available at https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf.
23 The first incident occurred on November 25, 2018, and the second on January 1, 2019. Megan Specia & Rick Gladstone, Border Agents Shot Tear Gas into Mexico. Was It Legal?, N.Y. Times (Nov. 28, 2018), at https://www.nytimes.com/2018/11/28/world/americas/tear-gas-border.html; Alan Yuhas, U.S. Agents Fire Tear Gas Across Mexican Border, N.Y. Times (Jan. 1, 2019), at https://www.nytimes.com/2019/01/01/world/americas/migrants-border-tear-gas.html.
24 Mex. Secretaría de Relaciones Exteriores Press Release, Mexico Asks for an Investigation into Incident at Tijuana-San Diego Border (Jan. 3, 2019), at https://www.gob.mx/sre/prensa/mexico-asks-for-an-investigation-into-incident-at-tijuana-san-diego-border.
25 Proclamation No. 9822, 83 Fed. Reg. 57,661 (Nov. 9, 2018) [hereinafter Entry Suspension Proclamation].
27 Id.; Proclamation No. 9842, 84 Fed. Reg. 3665 (Feb. 7, 2019). By its terms, the suspension would end earlier if the United States reached a deal with Mexico to allow asylum seekers to seek asylum in Mexico rather than the United States. Entry Suspension Proclamation, supra note 25; see also 8 U.S.C. 1158(a)(2)(A) (limiting asylum protections where the United States had an international agreement with a “safe third country” that would take in the asylum seekers).
28 8 U.S.C. § 1182(f).
29 Trump v. Hawaii, 138 S. Ct. 2392 (2018). For more details, see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 741 (2018).
30 Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018) [hereinafter Asylum Ban Interim Rule].
32 Complaint for Declaratory and Injunctive Relief, E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST (N.D. Cal. Nov. 9, 2018), available at https://www.splcenter.org/sites/default/files/al_otro_lado_v._trump_administration.pdf [hereinafter Asylum Lawsuit Complaint].
33 Id. at 17.
34 8 U.S.C.A. § 1158(a)(1) (emphasis added).
35 Asylum Lawsuit Complaint, supra note 32, at 1.
36 The APA requires federal agencies promulgating substantive rules to publish a “[g]eneral notice of proposed rulemaking” and allow for a comment period. 5 U.S.C. § 553(b)–(c). The APA further requires that the effective date of any substantive rule be delayed thirty days from the date of its publication. Id., § 553(d). The government did not follow these procedures, but claimed exemptions from these requirements under the “military or foreign affairs function” exception of § 553(a)(1) and the “good cause” exemptions contained in § 553(b)(B) and § 553(d)(3). E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, 349 F. Supp. 3d 838, 846 (N.D. Cal. Nov. 19, 2018) [hereinafter Asylum Lawsuit TRO Decision]
37 Asylum Lawsuit Complaint, supra note 32, at 17.
38 Asylum Lawsuit TRO Decision, supra note 36.
39 Id. at *1; see also id. at *16–*17 (also finding “serious questions” with respect to whether the APA exceptions were available to the government).
40 E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1246 (9th Cir. 2018) [hereinafter Ninth Circuit Decision Regarding a Stay].
41 E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, __ F. Supp. 3d __ 2018 WL 6660080 (N.D. Cal. Dec. 19, 2018).
42 White House Press Release, Statement from the Press Secretary (Nov. 20, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-41 [https://perma.cc/3MUF-99Q9].
43 White House Press Release, Statement from the Press Secretary (Dec. 19, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-43 [ https://perma.cc/T73P-SMDX].
44 Trump v. E. Bay Sanctuary Covenant, No. 18A615, 2018 WL 6713079, at *1 (U.S. Dec. 21, 2018) (noting that Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the stay application).
45 Ninth Circuit Decision Regarding a Stay, supra note 40, at 1249.
46 UN Treaty Collection, Depository Status for the Protocol Relating to the Status of Refugees, at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=V-5&chapter=5&lang=en; see also 114 Cong. Rec. 29577, 29607 (1968) (documenting the Senate's resolution of advice and consent).
47 United Nations Protocol Relating to the Status of Refugees, Art. 1(1), Jan. 31, 1967, 606 UNTS 267 (incorporating United Nations Convention Relating to the Status of Refugees, Art. 31(1), July 28, 1951, 189 UNTS 150).
48 Id. (incorporating UN Convention Relating to the Status of Refugees, Art. 32(1)).
49 Id. (incorporating UN Convention Relating to the Status of Refugees, Art. 33(1)).
50 UN High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Access to Protection and a Connection Between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries, para. 2 (Apr. 2018), at https://www.refworld.org/docid/5acb33ad4.html.
51 Id., para. 7.
52 See supra note 27 (discussing the applicable INA provision); Joshua Partlow & Nick Miroff, U.S. and Mexico Discussing a Deal That Could Slash Migration at the Border, N.Y. Times (July 10, 2018), at https://www.washingtonpost.com/world/the_americas/us-and-mexico-discussing-a-deal-that-could-slash-migration-at-the-border/2018/07/10/34e68f72-7ef2-11e8-a63f-7b5d2aba7ac5_story.html?utm_term=.6d607da46f13.
53 Azam Ahmed & Kirk Semple, Mexico Mulls Allowing Migrants to Stay There Pending U.S. Asylum Bids, N.Y. Times (Nov. 24, 2018), at https://www.nytimes.com/2018/11/24/world/americas/mexico-migrant-crisis.html.
55 8 U.S.C.A. § 1225(b)(2)(C).
56 U.S. Dep't of Homeland Security Press Release, Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018), at https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration [https://perma.cc/7B8P-EL2D].
57 Nick Miroff, Kevin Sieff & Mary Beth Sheridan, Trump Administration Reaches Deal That Will Force Asylum Seekers to Wait in Mexico as Cases are Processed, DHS's Nielsen Says, Wash. Post (Dec. 20, 2018), at https://www.washingtonpost.com/world/national-security/dhs-secretary-kirstjen-nielsen-to-face-questions-from-lawmakers/2018/12/20/f7d2ffea-0460-11e9-8186-4ec26a485713_story.html (stating that “Mexican officials insisted the policy did not amount to an agreement, but was instead being imposed on them by the United States”).
59 U.S. Dep't of Homeland Security Press Release, Migrant Protection Protocols (Jan. 24, 2019), at https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols [https://perma.cc/BX43-5P6B].
60 Richard Gonzales, Trump Administration Begins “Remain In Mexico” Policy, Sending Asylum-Seekers Back, NPR (Jan. 29, 2019), at https://www.npr.org/2019/01/29/689819928/trump-administration-begins-remain-in-mexico-policy-sending-asylum-seekers-back.
61 Complaint for Declaratory and Injunctive Relief, Innovation Law Lab v. Nielsen, No. 19-CV-00807 (N.D. Cal. Feb. 14, 2019), available at https://www.splcenter.org/sites/default/files/2019.02.14.0001_compl._for_decl._and_inj._relief.pdf.
62 Id., paras. 49–71.
63 Id., paras. 147–81; see also id., para. 172 (observing that the “prohibition on refoulement is a specific, universal, and obligatory norm of customary international law”).
64 The Flores Settlement is a 1997 consent decree that prescribes minimum standards for the treatment of minors in immigration custody. Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 7, 1997), available at https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf.
65 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45486 (proposed Sept. 7, 2018). Prior to this proposed rulemaking by the Department of Homeland Security, the Department of Justice had attempted unsuccessfully to use litigation to revoke aspects of the Flores Settlement. Order Denying Defendants’ “Ex Parte Application for Limited Relief from Settlement Agreement” at 7, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 9, 2018), available at https://www.aila.org/File/Related/14111359ac.pdf.
66 Matter of A-B-, 27 I. & N. Dec. 316, 317, 320 (2018). This administrative adjudicatory decision reversed an Obama-era ruling on this issue. See id. at 317.
67 Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018).
68 Jessica Taylor, Trump Signs Short-Term Bill to End Government Shutdown, But Border Fight Still Looms, NPR (Jan. 25, 2019), at https://www.npr.org/2019/01/25/688414503/watch-live-trump-addresses-shutdown-from-white-house-rose-garden.
69 Proclamation 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019); see also Scott R. Anderson & Margaret Taylor, What Authorities Is President Trump Using to Build a Border Wall, Lawfare (Feb. 15, 2019), at https://www.lawfareblog.com/what-authorities-president-trump-using-build-border-wall (discussing the legal nuances of this issue in detail).
70 Damian Paletta , Mike DeBonis, John Wagner, Amy B. Wang & Missy Ryan, Trump's Declaration of National Emergency Hit with First Lawsuits, Wash. Post (Feb. 16, 2019), at https://www.washingtonpost.com/politics/2019/02/16/trumps-declaration-national-emergency-faces-political-legal-challenges/?noredirect=on&utm_term=.daec82a8a58a (noting that within a day of this announcement one case had been filed challenging the decision on the merits, another case had been filed challenging transparency related to decision making, and still more challenges were in preparation).
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