Our asylum laws have long been a millstone around the neck of our immigration system — dragging down any efforts to curtail illegal immigration. As my colleague Mark Krikorian has written:
Asylum … represents a profound surrender of sovereignty, a limitation on the American people’s ability to decide which foreigners get to come here from abroad.
An unprecedented migration wave … has turned the Refugee Convention … [in]to a crowbar used by the post-national Left to pry open the borders of democratic societies contrary to the will of their citizens.
Krikorian noted at the beginning of the Biden border crisis that “Asylum is driving the current border crisis, with illegal aliens, coached by smugglers and U.S. immigration lawyers, turning themselves in and claiming a fear of return, thus initiating the asylum process.” He has explained that “the goal of illegal immigrants is not so much to receive asylum ... but rather merely to apply ... and then go about your new life secure in the knowledge your case may not be heard for years, and even if you are rejected, you are unlikely to be removed”. (Emphasis added.)
This all seemed to change on January 20, 2025, when President Trump issued Presidential Proclamation 10888, “Guaranteeing the States Protection Against Invasion”, on the first day of his second term. The president declared that:
I hereby proclaim, pursuant to sections 212(f) and 215(a) of the [Immigration and Nationality Act] INA … that aliens engaged in the invasion across the southern border of the United States on or after the date of this proclamation are restricted from invoking provisions of the INA that would permit their continued presence in the United States, including, but not limited to, [seeking asylum pursuant to] section 208 of the INA … until I issue a finding that the invasion at the southern border has ceased. [Emphasis added throughout.]
I … direct that entry into the United States of [aliens who fail, before entering to provide Federal officials with sufficient medical information and reliable criminal history and background information] be suspended and restrict their access to provisions of the INA that would permit their continued presence in the United States, including, but not limited to, [asylum].
The D.C. Circuit Court of Appeals has explained that “[t]o implement the Proclamation’s directives, [DHS] issued informal guidance … sent to immigration enforcement officials”:
The Guidance for “all Southwest Border Sectors” advises that individuals “who cross[] between the ports of entry on the southern land border” are “not permitted to apply for asylum.”… The Guidance for the northern and coastal borders further directs that entry is suspended for all individuals who “fail to provide” “sufficient medical information and reliable criminal history and background information. … [Such p]ersons … are also “restricted from invoking provisions of the INA, including asylum, that would permit their continued presence.” [Emphasis added except that underlined text was emphasized in the original.]
Upon implementation of President Trump’s proclamation, the change on the ground was startling, and got progressively more so:
Border Patrol apprehensions along the Southwest border decreased from 1,530,523 in FY 2024 (October 2023 through September 2024) to 237,538 in FY 2025 (October 2024 through September 2025) to 42,757 in the first the first half of FY 2026 (October 2025 through March 2026), an annualized rate of 85,514.
Apprehensions fell 91 percent from the 498,599 in the second half of FY 2024 (April 2024 through September 2024) to 42,461 in the second half of FY 2025 (April 2025 through September 2025).
Apprehension from February 2025 through March 2026 totaled 100,746 — an annualized 86,534, which is down 94 percent from FY 2024 apprehensions.
- According to the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review, aliens filed 898,144 asylum applications in our immigration courts in FY 2024 and 833,174 in FY 2025, but only 54,316 in the first quarter of FY 2026 (October to December 2025), an annualized rate of only about 217,000.
But the D.C. Circuit Court of Appeals last week issued its decision in Refugee and Immigrant Center for Education and Legal Services v. Mullin (RICELS), in which it ruled that “The Proclamation and [implementing] Guidance are … unlawful to the extent that they circumvent the INA’s removal procedures and cast aside federal laws affording individuals the right to apply and be considered for asylum or withholding of removal protections.”
I believe that the D.C. Circuit came to the clearly correct legal conclusion — the INA “includes no … provision empowering the President to suspend [its] expressly mandatory and exclusive procedures for removing individuals already present in the United States”, the INA “does not allow the President to remove [aliens] under summary removal procedures of his own making”, “[n]or does [the INA] allow the Executive to suspend [aliens’ statutory] right to apply for asylum, deny [their statutory] access to withholding of removal under the INA, or curtail mandatory procedures for adjudicating [their] Convention Against Torture claims”. I will explain in my next piece (in excruciating detail) why the D.C. Circuit got it right.
But, in any event, the D.C. Circuit’s decision (assuming it isn’t stayed or overturned by the Supreme Court) presents a unique natural experiment. Those who have argued that our immigration laws do not need to be changed in order to end the illegal immigration debacle presumably believe that President Trump can keep on keeping on despite the court’s ruling. Those (like myself) who have argued that the laws need to be changed, as they are one of the debacle’s root causes, fear that the court’s ruling will have calamitous effects.
Sure, President Biden and his impeached Secretary of Homeland Security Alejandro Mayorkas made a bad situation so much worse by, among other things, flouting detention mandates for aliens apprehended at the border and weaponizing the parole power to create unlawful “lawful pathways” to allow aliens to “legally” flood into the country regardless of the limits imposed by Congress. But the situation was bad even before they assumed control, because Congress has long handed the executive branch a bad hand (not that presidents other than Donald Trump even wanted to control illegal immigration).
Maybe President Trump can pull a rabbit out of his hat by supersizing the use of third-country removals and safe-third-country agreements and the like, but I doubt that even a magician of the order of Merlin could pull it off.
We shall see what results the experiment yields. But if the results are a renewed debacle, the fault lies with Congress, not with the D.C. Circuit. The court performed its constitutional duty by faithfully applying the immigration laws that Congress has bequeathed to the nation, regardless of the good sense or lack thereof embodied in those laws. As the court concluded, “the Proclamation and Guidance are unlawful in that they circumvent Congress’s carefully crafted removal procedures”. It is Congress’s responsibility to undo the damage caused by its “carefully crafted removal procedures” — procedures that directly led to the debacle of mass illegality and mass illegal immigration that President Trump inherited and was in large part elected to remedy.
I have no illusions that this will be easy to accomplish — congressional immigration reformers would need to garner the support of a majority of the House of Representatives and 60 senators, and also of the leadership of the majority party in the House and Senate (and, believe me, those two things are not necessarily one and the same). It is true that in 1996 a majority of House Democrats (105 to 80) voted for U.S. Rep. Lamar Smith’s (R-Texas) immigration law enforcement juggernaut H.R. 2202 — which in large measure became the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), signed into law by President Bill Clinton. But that was before the Blue Dog Democrats suffered the largest mass extinction since the dinosaurs. Consequently, a decade later in 2005, when the House passed H.R. 4437, Judiciary Committee Chairman F. James Sensenbrenner, Jr.’s (R-Wis.) next-generation juggernaut, only 18 percent of House Democrats voted for it (36 to 164). A decade after that, in 2018, Judiciary Committee Chairman Bob Goodatte’s (R-Va.) juggernaut 3.0, H.R. 4760, garnered zero Democrat votes (and was opposed by 41 Republicans, largely driven by their concerns about losing illegal alien labor). I should note that I had the privilege of working for all three members on these pieces of legislation.
But, for our nation’s sake, Congress still needs to try to achieve real asylum reform — whether by mending it or ending it. After all, the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In a very real sense, the D.C. Circuit has done the country a favor by reminding us where much of the responsibility lies. If our insane asylum laws are to be fixed, only Congress can do it. As the D.C. Circuit itself stated:
Congress enacted the asylum statute, with narrow exceptions specified by statute, to grant all foreign individuals “physically present” in the United States a right to apply for asylum and have their individual applications adjudicated. … If the Government wishes to modify this carefully structured and intricate system, it must present those arguments to the only branch of government able to amend the INA: Congress.
A president can try to limit the damage done by those laws, but he can neither disregard them nor repeal them. Congress, legislate up!