Related: Does a President Have the Constitutional Power to Remove Aliens, Even in Violation of Federal Law?
This paper considers whether the president has authority under federal law to suspend the statutory right to apply for asylum of aliens apprehended along the southern border and to create new removal processes apart from those laid out in the Immigration and Nationality Act.
Summary
- On the first day of his second term, President Trump issued a proclamation declaring that “aliens engaged in the invasion across the southern border … are restricted from invoking provisions of the INA that would permit their continued presence [here], including” seeking asylum.
- On April 24, the D.C. Circuit Court of Appeals ruled that “The Proclamation and [implementing] Guidance are … unlawful to the extent that they circumvent the [Immigration and Nationality Act’s] removal procedures and cast aside … [aliens’] right [under the INA] to apply and be considered for asylum.”
- I believe that the D.C. Circuit came to the correct legal conclusion. If its decision leads to a renewed border debacle, the fault lies with Congress, not with the court. The D.C. Circuit performed its constitutional duty by faithfully applying the immigration laws written by Congress, regardless of their good sense or lack thereof. As the court concluded, “the Proclamation and Guidance circumvent Congress’s carefully crafted removal procedures”. It is Congress’s responsibility to undo the damage caused by its “carefully crafted” 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.
The INA provides that “Any alien who is physically present … or who arrives in the United States []whether or not at a designated port of arrival … irrespective of such alien’s status, may apply for asylum.” The government argued that “the Proclamation and Guidance work to preemptively and categorically deny asylum to all individuals subject to the Proclamation”, and that “because the ultimate disposition of any asylum application is foreordained”, it may “disallow [aliens] from even filing such futile applications”.
But Congress has given aliens the right to apply for asylum even when ineligible to receive it. One can question whether this makes any sense, but it is clearly what Congress did. In President Trump’s first term, the administration agreed, as when it argued that “even if [the asylum statute] does not bar an alien from applying for asylum, he still may be categorically ineligible” from being granted asylum.
The INA authorizes the government to remove removable aliens through two specified methods — removal proceedings in immigration court and expedited removal. However, the government argued that aliens subject to the proclamation may be removed through new processes that, as the D.C. Circuit found, “purport to supplant several statutory protections from removal as well as their corresponding administrative procedures”.
The government defended these new summary removal procedures by contending that “the President’s authority to ‘by proclamation ... suspend the entry’ of foreign individuals … also empowers the President to summarily remove foreign individuals who have entered … in violation”, and that the “power to exclude must include the power to expel if the former is to have any meaningful force”.
But the president’s power — granted by Congress in section 212(f) of the INA — to bar aliens’ entry into the United States whose entry “would be detrimental to the interests of the United States” does not, per the D.C. Circuit, grant “authority to countermand conditions Congress attached to the INA’s expressly comprehensive removal provisions”. In President Trump’s first term, the administration agreed, as when it explained that “an alien subject to a proclamation who nevertheless entered … in contravention of its terms generally would be placed in … [the INA’s] expedited-removal proceedings ... and those proceedings would allow the alien to raise any claims for protection before being removed”.
- As the D.C. Circuit stated, “If the Government wishes to modify [Congress’s] carefully structured and intricate system, it must present those arguments to the only branch of government able to amend the INA: Congress.”
Introduction
On January 20, 2025, the first day of his second term in office, President Trump issued Proclamation 10888, “Guaranteeing the States Protection Against Invasion”. 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 explained that “[t]o implement the Proclamation’s directives, the Department of Homeland Security [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.]
On Friday, April 24, the D.C. Circuit Court of Appeals 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 and I explain in this piece why so. Let me state right off the bat that, as I have recently written, if the D.C. Circuit’s decision in RICELS leads to a renewed border debacle, the fault lies with Congress, not with the court. The D.C. Circuit 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.
But first, what do our asylum laws provide and why do they belong in an insane asylum?
Asylum Under the Immigration and Nationality Act
Section 208 of the INA provides that:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, [the expedited removal process]. [Emphasis added throughout.]
The Secretary of Homeland Security [the Secretary] or the Attorney General [the AG] may grant asylum to an alien who has applied for asylum … if the Secretary … or the [AG] determines that such alien is a refugee.
Who is a refugee? Section 101 of the INA defines a refugee generally as an alien who “is unable or unwilling to return to … the country [of their nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”.
Section 208(a) provides that certain aliens are barred from applying for asylum:
Aliens subject to safe third country agreements:
[A]n alien [may not apply for asylum who] may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality … ) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the [Secretary or the AG] finds that it is in the public interest for the alien to receive asylum in the United States.
- Aliens who fail to apply for asylum within one year:
[A]n alien [may not apply for asylum who cannot] demonstrate[] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival … [unless]
the alien demonstrates … either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application[.]
Aliens who previously were previously denied asylum:
[A]n alien [may not apply for asylum who] has previously applied for asylum and had such application denied … [unless]
the alien demonstrates … the existence of changed circumstances which materially affect the applicant’s eligibility for asylum[.]
Section 208(b) provides that entirely different classes of aliens are ineligible to receive asylum (though not barred from applying):
- Alien criminals:
[Aliens are ineligible for asylum who] having been convicted by a final judgment of a particularly serious crime, constitute[] a danger to the community of the United States[, or]
there are serious reasons for believing … ha[ve] committed a serious nonpolitical crime outside the United States prior to … arrival … in the United States[.]
- Alien terrorists: “[A]lien[s are ineligible for asylum who are] described [with certain exceptions under the terrorism-related grounds of inadmissibility or deportability.]”
- Alien persecutors: “[Aliens are ineligible for asylum who] ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion[.]”
- Security risks: “[Aliens are ineligible for asylum if] there are reasonable grounds for regarding … as a danger to the security of the United States[.]”
- Firmly resettled aliens: “[Aliens are ineligible for asylum who were] firmly resettled in another country prior to arriving in the United States[.]”
Section 208(b) additionally provides that the secretary “may by regulation establish additional limitations and conditions, consistent with … section [208], under which an alien shall be ineligible for asylum”.
The expedited removal process was enacted into law in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) because, as the House Judiciary Committee put it, “[t]he asylum system has been abused by those who seek to use it as a means of ‘backdoor’ immigration” and because “[e]xisting procedures to deny entry to and to remove illegal aliens … are cumbersome and duplicative” and “ [r]emoval of aliens who enter … illegally, even those who are ordered deported after a full due process hearing, is an all-too-rare event”.
Section 235(b)(1) of the INA provides that if an alien subject to expedited removal “indicates either an intention to apply for asylum … or a fear of persecution”, then an immigration “officer shall refer the alien for an interview by an asylum officer”. If the asylum “officer determines … that [the] alien has a credible fear of persecution … the alien shall be detained for further consideration of the application for asylum” (in practice, in removal proceedings before an immigration judge).
Section 235(b)(1)(b)(v) defines a “credible fear of persecution” as there being “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”. As the House Judiciary Committee explained in 1996:
This standard … is lower than the ‘‘well-founded fear’’ standard needed to ultimately be granted asylum in the U.S. — the arriving alien need only show a probability that he will meet the well-founded fear standard. … If the alien meets this threshold, the alien is permitted to remain in the U.S. to receive a full adjudication of the asylum claim — the same as any other alien in the U.S.
Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) stated on the Senate floor that this credible fear standard — adopted in the conference report to H.R. 2202, which was later enacted into law in modified form as IIRIRA — was “intended to be a low screening standard”.
Our Insane Asylum
The former Immigration and Naturalization Service (INS) reported that in FY 1974, only 2,716 aliens requested, and only 294 were granted, asylum. Yet, even with such low numbers, the INS concluded that “Many [asylum] requests were found to be frivolous and were being used as a stratagem to remain longer in the United States or to avoid deportation.”
The explosion in asylum applications is reflected in data released by the Transactional Records Access Clearinghouse (TRAC), a highly respected data gathering and analysis organization founded in 1989 at Syracuse University. TRAC reports a current backlog of about 3.3 million cases in our immigration courts (down from about 3.7 million in FY 2024 but up from only about 325,000 in 2012 and 1.5 million in 2021), and reports that of this total, 2,322,671 aliens had already filed asylum applications. Thus, asylum claims represent about 70 percent of the backlog in immigration court.
The level of fraud has since ballooned along with the number of claimants. In 2011, Sam Dolnick reported in the New York Times that:
A shadowy industry dedicated to asylum fraud thrives in New York. ... Immigrants peddle personal accounts ripped from international headlines.
The embellished stories go in and out of fashion along with the news of the day.
Of course, thousands of … claims are legitimate. But each cataclysm [around the world] provides convenient cover stories for immigrants desperate to settle here for other reasons. ... “When there’s a problem anywhere, a horrible slaughter in Somalia, wherever, the first couple of years of those cases are very real,” said ... an immigration lawyer in Manhattan. “Then the next four or five years, they just mimic those stories.”
Three years later, Kirk Semple, Joseph Goldstein, and Jeffrey Singer reported in the Times in a piece titled “Asylum Fraud in Chinatown: An Industry of Lies”, that:
A Chinese woman ... had applied for asylum, claiming that she had been forced to get an abortion in China ... and she was anxious about her coming interview. ...
She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.
But the lawyer ... told her to relax. ... “You are making yourself nervous. ... All you would be asked is the same few rubbish questions. ... Just make it up[.]”
[The lawyer] and a paralegal briefed her on the sequence of fictitious events she had to memorize. ...
He said asylum was nearly a foregone conclusion: Cases like hers were getting approved without a problem. “It’s too easy,” he said.
This was not an isolated incident:
Peter Kwong, a professor at the City University of New York ... said it was an open secret in the Chinese community that most asylum applications were at least partly false, from fabricated narratives of persecution to counterfeit supporting documents and invented witness testimony.
False asylum petitions are among the most common forms of immigration fraud, in part because they are difficult to detect, experts said.
[A]sylum fraud cuts across all immigrant groups, officials say.
Narratives and documents are recycled from client to client, with the names and dates changed — though sometimes the lawyers forget to do even that.
Can you imagine the New York Times allowing such articles to be published today?
Foreshadowing problems to come, the GAO (now called the U.S. Government Accountability Office) reported in 2000 that, “Some [immigration] judges told us that although the credible fear process was the result of a well-intentioned statute, within the current parameters the process did not seem effective because so many asylum officers were determining that aliens had a credible fear of persecution or torture.”
Fast forward two decades to President Trump’s first term. DHS and the Department of Justice (DOJ) explained in 2018 that:
When the expedited [removal] procedures were first implemented … relatively few aliens [apprehended at the border] … asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens … were single [Mexican] adults who were immediately repatriated…. [A]liens could be processed and removed more quickly, without requiring detention or lengthy court proceedings.
In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution … and are subsequently placed into removal proceedings in immigration court. Most of those aliens unlawfully enter the country between ports of entry along the southern border. Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in … 2008 to about 97,000 in … 2018. … In FY 2018 … positive credible-fear determinations [by asylum officers, awarding the aliens a ticket to immigration court] climbed to about 89% of all cases. [Yet] significant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases …) established that they should be granted asylum.
Despite the INA mandating the detention of aliens receiving credible fear determinations (whether positive or negative), the vast majority were released into the United States, with work authorization provided by DHS, asked to “wait” years for their removal proceedings to commence, and to then show up in immigration court for their hearings and for the immigration judges determinations as to their removability. I put “wait” in quotation marks because many of these aliens simply absconded, never showing up for their proceedings.
Around the world, word got out that a claim of fear of persecution upon apprehension at the border represented a virtual free pass into the U.S. — often trumpeted by alien smugglers seeking new business. And the smugglers weren’t engaging in puffery — they were accurately describing the situation. This was the primary reason why the number of credible fear claims was skyrocketing and the border was in crisis.
Think I am just parroting right wing talking points? In 2023, President Biden’s DHS Secretary Alejandro Mayorkas and AG Merrick Garland belatedly came to the realization that the United States was being played by “asylum seekers”:
[M]any individuals who avail themselves of the credible fear [of persecution] process do not have meritorious claims [for asylum].
[M]ost people processed for expedited removal … will likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum.
[M]ost migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent … removal proceedings.
[N]oncitizens ultimately found ineligible for asylum or another form of protection are likely to spend many years in the United States prior to being ordered removed.
Mayorkas and Garland realized that this state of affairs creates an incentive for aliens to come illegally to the U.S.:
[T]he fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north.
[T]he expectation of a lengthy stay in the United States, regardless of the merit of an individual’s case, risks driving even more migration.
In 2024, Mayorkas and Garland belatedly further concluded that:
Absent [policy changes], these harmful results are especially likely … [referring to] large-scale releases [of aliens apprehended at the border] pending … removal proceedings … [that] have significant impacts on communities and contribute to further migration by incentivizing potential migrants to travel to the United States with the belief that, even if initially detained, they will ultimately be released to live and work in the United States for long periods of time.
TRAC reported that in the first quarter of FY 2024 (October through December 2023), aliens making asylum claims in removal proceedings were waiting an average of 1,424 days from the filing of a Notice to Appear until their next scheduled hearing. Four years — and that was just until their next scheduled hearing! Few of these aliens were being detained and many had been granted work authorization. No wonder even former Secretary Mayorkas and AG Garland had to admit we had a problem.
The D.C. Circuit’s RICELS Decision
The Right to Apply for Asylum
As mentioned, the INA provides that “Any alien who is physically present in the United States or who arrives in the United States []whether or not at a designated port of arrival … irrespective of such alien’s status, may apply for asylum.”
The Trump administration took the position, as the D.C. Circuit explained, that “the Proclamation and Guidance work to preemptively and categorically deny asylum to all individuals subject to the Proclamation”, and that “because the ultimate disposition of any asylum application is foreordained”, it may “disallow [foreign individuals] from even filing such futile applications.” (Emphasis in original.)
The D.C. Circuit concluded, however, that “the statutory right to apply [for asylum] reaches even foreign individuals whom the statute renders ineligible to receive it” (emphasis in original), finding that “The plain text of [§ 208](a) defeats the Government’s assertion that it may restrict everyone subject to the Proclamation from ‘invoking’ the right to [apply for] asylum.” The court elaborated that:
[E]ven if the INA authorized the Executive to exercise its discretion to deny asylum in such a preemptive and categorical manner, the fact that any applications from individuals subject to such a decision would be futile is not a sufficient reason to deny them the right to apply for asylum. After all, the same could be said about individuals who are ineligible for asylum by statute or regulation, and no one disputes that they have a right to apply.
Importantly, in the scheme Congress devised, eligibility exceptions … are distinct from the application restrictions. … And eligibility exceptions become relevant only after an individual has exercised the right to apply. … As a result, even though the INA prohibits ineligible individuals from receiving asylum, it leaves intact their right to apply for asylum in the first place. [Emphasis in original.]
The D.C. Circuit reached the correct conclusion here as a matter of statutory interpretation, in accordance with the plain meaning of the statutory text: Congress has given aliens the right to apply for asylum even when they are ineligible to receive it. One can question whether it made sense for Congress to so split the consideration of whether aliens can apply for asylum from the consideration of whether they are eligible for asylum. But that is clearly what Congress did.
Notably, the Trump administration actually shared the D.C. Circuit’s interpretation — at least it did in President Trump’s first term. In 2018, DHS and DOJ issued an interim final rule (IFR) providing that “an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation … suspending or limiting the entry of aliens along the southern border with Mexico … and the alien enters the United States … contrary to the terms of the proclamation”.
DHS and DOJ explained in the rule’s preamble that “This restriction on eligibility to asylum is consistent with section 208(a)(1) of the INA. … The regulation establishes a condition on asylum eligibility, not on the ability to apply for asylum.” The Trump administration was in effect saying that even if the ultimate disposition of any asylum application was foreordained, the alien at issue could still file a futile application.
The Ninth Circuit, though, disagreed with the Trump administration, and affirmed the district court’s preliminary injunction against the regulation.1
In its 2021 decision upholding the injunction against the IFR, the Ninth Circuit set forth the Trump administration’s position:
The government argues that ... [s]ection [208] splits asylum applications ... and eligibility ... into two different subsections; therefore ... Congress intended to allow DOJ to promulgate limitations on asylum eligibility without regard to the procedures and authorizations governing asylum applications. … [T]he Rule does not prevent migrants from submitting futile asylum applications.
Further, the government argued, in the words of the Ninth Circuit, that:
[Section 208] contains various provisions making ineligible asylum applicants who committed a serious, nonpolitical crime outside the United States ... among other things. The government suggests that the existence of these eligibility bars in the INA demonstrates that Congress intended certain categories of migrants to be permitted to apply for asylum even though they are categorically ineligible.
Was the Ninth Circuit distorting the Trump administration’s position? As noted, DHS and DOJ explained in the rule’s preamble that “The regulation establishes a condition on asylum eligibility, not on the ability to apply for asylum.” This didn’t escape the attention of the D.C. Circuit in RICELS, which noted that “[t]he First Trump Administration described a proposed rule to render certain individuals ineligible for asylum as consistent with … § [208](a)(1)”, because it “establishe[d] a condition on asylum eligibility, not on the ability to apply for asylum”.
Further, the Trump administration argued in defense of the IFR in its Defendants’ Opposition to Motion for Temporary Restraining Order (Opposition) that:
[E]ven if § [208](a) does not bar an alien from applying for asylum, he still may be categorically ineligible for asylum under six statutory eligibility bars … or any “additional limitations” the agency heads may impose. … And even if an alien does not fall within one of these statutory or regulatory eligibility bars, the ultimate “decision whether asylum should be granted to an eligible alien is committed to the [AG]’s discretion.” [Quoting the Supreme Court’s 1999 decision in INS v. Aguirre-Aguirre.] … Section [208] imposes no express constraints on the Executive’s discretion to deny asylum to an applicant, and thus the asylum bar imposed by the rule here is not in any way inconsistent with § [208]. To the contrary, [it] primarily limits the Executive’s discretion to grant asylum, by imposing six statutory eligibility bars, each of which renders an alien categorically ineligible for this relief regardless of his ability to apply for asylum. [Emphasis added.]
The Trump administration concluded in its Opposition that:
It therefore is not the case that “The ability to apply for asylum has to be a meaningful one, involving some chance of actually receiving asylum[].”
The simple fact that is that § [208](a)’s rules governing an alien’s right to apply for asylum simply do not speak to § [208](b)’s rules governing the Executive’s discretion to deny asylum, whether through adopting categorical eligibility bars or through relying on particular considerations in individualized asylum adjudications. [Emphasis in original.]
The Ninth Circuit, in upholding preliminary injunction, concluded that “[w]e avoid absurd results when interpreting statutes”, elaborating that “Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity [pun apparently intended]. The consequences of denial at the application or eligibility stage are, to a refugee, the same.”
The court tried to differentiate the explicit statutory grounds of ineligibility for asylum in § 208 from the regulatory ground of ineligibility set forth in the rule by contending that:
[U]nlike the eligibility bar effected by the Rule — the statutory asylum bars in the INA do not separately conflict with explicit text in section [208](a). There is no provision in section [208](a), for example, that affirmatively requires that migrants who were firmly resettled in another country be permitted to apply for asylum. The Rule creates the only bar to eligibility ... that directly conflicts with language in section [208](a) ... . “‘[T]o say that one may apply for something that one has no right to receive is to render the right to apply a dead letter.’” [Quoting the district court’s 2018 decision in East Bay Sanctuary Covenant v. Trump2.] The district court correctly concluded that the Rule is substantively invalid because it conflicts with the plain congressional intent ... and is therefore “not in accordance with law[.]” [Emphasis added except that underlined text was emphasized in the original.]
But the rule’s eligibility bar conflicts with the text of § 208 only if there was in fact no difference between a bar to applying for asylum and a bar to eligibility — the very question at issue! As the Ninth Circuit’s dissenting judge argued:
The bifurcation of [§ 208] indicates that the two authorities — applying for asylum and receiving asylum — are purposefully distinct. The Executive cannot interfere with the former but can expressly alter the latter. And it is perfectly “consistent” to allow an alien to apply for asylum generally and to restrict asylum eligibility to only a subset of those who apply. This is especially so where, as here, the restriction is of limited time and scope.
The panel’s reading essentially conflates applying for and receiving asylum. But just because an alien can apply for asylum does not entitle him or her to receive asylum. Instead, whether an alien is ultimately granted asylum is purely a matter of executive grace [under § 208,] the Executive “may grant asylum”.
As to “absurdity”, the dissenting judge proclaimed that if Congress wanted to write absurd legislation, it had the right to do so:
The panel also justified its departure from the plain text by arguing that this reading would lead to “absurd results.”… The “absurdity canon [of statutory construction] isn’t a license for us to disregard statutory text where it conflicts with our policy preferences.” [Quoting the 9th Circuit’s 2015 decision in Tamm v. UST-U.S. Trustee, Honolulu (In re Hokulani Square, Inc.).]
If Congress wanted to preclude the Executive from basing asylum decisions on the manner of the alien’s arrival, it could have easily said so. … Based on the text of the statute, the asylum-application provision expressly authorizes aliens who enter between ports of entry to file asylum applications, while the asylum-granting provision contains no such guarantee. … [W]e should have simply adhered to the plain meaning of the text.
But the judge quickly observed that “frankly, there is no absurdity here at all”, elaborating that:
The Rule says that everyone who arrives outside of a port of entry is able to apply for asylum, but because of the identified migrant crisis, for the 90-day period at the southern border, applicants must come in through a port of entry to successfully gain asylum. While the panel majority may disagree with that policy decision, there is nothing absurd about it. Indeed, § [208] sets numerous categorical exclusions from asylum eligibility for aliens who are statutorily authorized to apply for asylum.
Moving on, the D.C. Circuit brought up the point that the Trump administration had acted through a proclamation and guidance rather than through a regulation that had gone through the Administrative Procedure Act’s notice and comment process (in contrast with 2018, when the administration did both — President Trump issued a Proclamation and DHS and DOJ issued an IFR). The court wrote that:
[E]ven if the Executive could categorically deny the right to apply for asylum based on a broad ex ante determination that all the potential applicants will be denied asylum … it can only promulgate that blanket determination by notice-and-comment rulemaking. Congress expressly contemplated the potential need for new asylum disqualification and provided tools for just that purpose. First, as described above, the asylum statute authorizes the [Secretary] to “by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum.”… The asylum statute also authorizes the [Secretary] to “provide by regulation any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.”… [Emphasis in original.]
Thus, even assuming that the Executive’s decision to foreclose asylum to individuals subject to the Proclamation could be understood as an “additional limitation[] and condition[] ... under which an alien shall be ineligible for asylum[]” … and that such an eligibility limitation could foreclose the right to apply, that decision would have to be established “by regulation[.]”
But “[I]t is undisputed that the challenged Guidance was not established ‘by regulation’ — i.e., through notice-and-comment rulemaking. We cannot license the Executive to do by Proclamation and informal guidance what Congress has determined must be done, if it can be done at all, by rule.”
However, Judge Justin Reed Walker got the better of the majority in his concurrence in part and dissent in part. He argued that:
[E]ligibility “does no more than establish that the alien may be granted asylum in the discretion of” the Executive Branch. [Quoting the Supreme Court’s 1987 decision in INS v. Cardoza-Fonseca.] So any restriction on the Executive’s power to create rules concerning who is eligible for asylum (the Step 1 inquiry) says nothing about the Executive’s discretion to decide whether to grant asylum to anyone (the Step 2 inquiry). [Emphasis in Cardoza as cleaned up by RICELS.]
Further, Judge Walker noted that “The procedures related to consideration of applications are inapplicable if there are no asylum applications to consider.”
Does Section 212(f) of the Immigration and Nationality Act Allow DHS to Bypass Statutory Removal Provisions?
The D.C. Circuit explained that:
The INA authorizes the Executive to remove a foreign individual from the United States but confines that authority to only two specified methods: regular removal under [INA § 240] or expedited removal under [INA § (235)(b)(1). Section 240 provides that r]egular removal is the “sole and exclusive procedure” for removal of foreign individuals “[u]nless otherwise specified in [the INA].”… Congress has only “otherwise specified” one additional removal procedure: “expedited removal[]”.
But, as the D.C. Circuit noted, the guidance created entirely new removal mechanisms:
The Guidance declares that individuals subject to the Proclamation may now be removed by one of two newly announced processes — either “Direct Repatriation” or “Expedited Removal.”… [T]he Guidance’s “Expedited Removal” is distinct from expedited removal under [INA § 235(b)(1)]. The only difference between the two newly declared pathways is that individuals subject to the Guidance’s version of Expedited Removal “are served with a Notice to Alien Ordered Removed and issued an Expedited Removal Order” form, while those removed via Direct Repatriation receive no removal order.
Further, the D.C. Circuit observed that “The Guidance’s removal pathways purport to supplant several statutory protections from removal as well as their corresponding administrative procedures in several ways,” elaborating that:
Under existing regulations, immigration officers overseeing expedited removal … prompt the individual to advise the officer of any “fear” or “concern” that they have about “being removed from the United States or about being sent home.” [quoting 8 C.F.R. § 235] Next, the officer must … record the individual’s answers concerning their fears about being removed. … If the foreign individual “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country,” the immigration officer must refer that individual for a[ credible fear] interview by an asylum officer and provide them with “a written disclosure[”]… [that] informs the individual about the credible-fear interview process, the right to consult with other persons before the interview, and the right to request review of the asylum officer’s credible fear determination by an immigration judge.
The D.C. Circuit concluded that:
[B]oth summary repatriation processes under the Guidance countermand those statutory and regulatory procedures. The Guidance directs asylum officers … to not “ask specific fear questions.”… Instead, the Guidance directs that only individuals who spontaneously “manifest[] fear” to an immigration officer will be referred for additional assessment. … Even then, the referral is limited to a “[Convention Against Torture]-Only Assessment.”… prevent[ing] even those individuals who manifest fear of persecution from being considered for asylum or withholding of removal under the INA.
The government defended its creation of these new summary removal procedures by contending, according to the D.C. Circuit, that “the President’s authority to ‘by proclamation ... suspend the entry’ of foreign individuals [under INA § 212](f)] also empowers the President to summarily remove foreign individuals who have entered the United States in violation of the Proclamation’s entry bar”. The D.C. Circuit explained that “The Proclamation and Guidance invoke [§ 212](f) … to supplant other provisions in the INA that govern the removal of foreign individuals already present in the United States.”3
However, the court concluded that § 212(f) does not “empower[] the Executive to displace the INA’s exclusive and mandatory removal procedures”, that the INA’s “regular and expedited removal provisions spell out who may be removed, on what grounds, and with what procedural safeguards”, and that aliens subject to removal “are statutorily entitled to apply for asylum … , withholding of removal … , and withholding of removal under the Convention Against Torture”.
What is § 212(f)? It provides that:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The D.C. Circuit concluded that “By its plain text, [§ 212](f) authorizes the President to suspend only … ‘entry’ … [which] means ‘any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise.’” Well, not quite. IIRIRA removed that definition from the INA, without replacing it with a new one. But to be fair to the court, IIRIRA struck the definition not because its authors intended to modify the term’s meaning, but rather because the term itself was losing much of its significance as a result of IIRIRA. As the House Judiciary Committee explained:
[The legislation] replac[es] the definition of ‘‘entry’’ with a definition for ‘‘admission’’ and ‘‘admitted’’: the entry of an alien into the United States after inspection and authorization by an immigration officer.
Th[e legislation] is intended to replace certain aspects of the current ‘‘entry doctrine,’’ under which illegal aliens who have entered the United States without inspection gain equities and privileges in immigration proceedings that are not available to aliens who present themselves for inspection at a port of entry. Hence, the pivotal factor in determining an alien’s status will be whether or not the alien has been lawfully admitted[, not whether the alien has “entered].
The D.C. Circuit reasoned that “It would contravene traditional interpretive principles to conclude that Congress acted tacitly — in a provision and statutory part addressing ‘entry’ and ‘admissibility’ with no mention of ‘removal’ — to grant the President the authority to override the INA’s removal provisions.” The court observed that “Presidents of both political parties have invoked [§ 212(f)] at least 90 times over the last four decades. … Every one of those uses was confined to preventing foreign individuals from entering the territorial land or waters of the United States.”
The court concluded that:
Section[s 212](f) … afford[s] the President discretionary powers over who may cross our borders and enter the United States. But those provisions do not confer presidential discretion over removal procedures. … [It does not] grant[] the President authority to countermand conditions Congress attached to the INA’s expressly comprehensive removal provisions.
Conversely, the government contended, per the court, that “the power [§ 212(f)] confers to suspend entry is ‘toothless’ absent a coordinate power to override, by proclamation, the INA’s removal provisions. … [Section] [212](f)’s power to exclude must include the power to expel if the former is to have any meaningful force.” (Emphasis in original.)
But the D.C. Circuit replied that the government’s “premise is mistaken”, that “The Executive indeed has the power to remove foreign individuals who enter the country illegally.” (Pursuant to INA §§ 235 and 240.) It even threw Justice Clarence Thomas’s dissenting opinion in the Supreme Court’s 2009 decision in Negusie v. Holder at the government:
Where Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions[,] courts should not read one part of the legislative regime (the INA) to provide a different, and conflicting, solution to a problem that has already been specifically addressed elsewhere in the federal immigration regime.
In 2023, I had reached a similar conclusion to that now reached by the D.C. Circuit — that § 212(f) empowers DHS to deny entry, but provides DHS with no independent authority to remove aliens who have entered the U.S. in defiance of a § 212(f) proclamation. In other words, as to removal, it provides no “value added”. Then what value added does § 212(f) provide? The value added is in allowing the president to cut off legal admissions to the United States — by prohibiting immigration officers from admitting aliens whose entry has been suspended pursuant to a § 212(f) proclamation.
In what is now a recurring theme, DHS and DOJ had also reached essentially the same conclusion during President Trump’s first term. In their 2018 IFR, they pondered a scenario where “[a]n alien whose entry is suspended or restricted under ... a [§ 212(f)] proclamation ... nonetheless reaches U.S. soil”, and they concluded that:
[The alien] would remain subject to various procedures under immigration laws. For instance, an alien subject to a proclamation who nevertheless entered the country in contravention of its terms generally would be placed in [§ 235(b)(1)] expedited-removal proceedings ... and those proceedings would allow the alien to raise any claims for protection before being removed from the United States, if appropriate. Furthermore, the asylum statute provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival),” and “irrespective of such alien’s status, may apply for asylum[”]... . Some past proclamations have accordingly made clear that aliens subject to an entry bar may still apply for asylum if they have nonetheless entered the United States. [Emphasis added.]
For this very reason, I warned in 2023 that a § 212(f) proclamation would be totally ineffectual in terms of addressing the crisis at our southern border unless aliens who ignored its terms and entered the U.S. anyway could actually be expeditiously removed. In fact, that was exactly what the Trump administration attempted to do with its 2018 IFR, using its authority under § 208 (to by regulation establish additional limitations and conditions under which an alien shall be ineligible for asylum) to provide that “an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation … suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) … and the alien enters the United States … contrary to the terms of the proclamation”. Thus, the Trump administration was attempting to close the circle, by regulation adding teeth to the § 212(f) proclamation through its § 208 powers. It would have succeeded, too, if not for the court injunction.
But how does the D.C. Circuit’s analysis square with its 2022 decision in Huisha-Huisha v. Mayorkas? The court in RICELS explained that:
There, we ruled that the authority of the Centers for Disease Control and Prevention (CDC), under a public health law [42 U.S.C. § 265], to prohibit the “introduction of persons and property” into the United States when they pose a “serious danger of the introduction of [a communicable] disease into the United States[]” … came with a companion “authority to expel” such persons as needed to stem the same contagion.
The court then concluded that “The Government’s reliance on Huisha-Huisha here is misplaced” and that “we are unpersuaded that our decision to sustain the preliminary injunction in Huisha-Huisha … warrants a different interpretation.”
How did the D.C. Circuit differentiate the two cases? The court wrote in RICELS:
Huisha-Huisha involved not only a statute in a different title of the U.S. Code, but a provision therein that is both unaffiliated with the INA and has a substantially different aim. Congress enacted the Public Health Services Act in 1944 to address public health, not immigration. … The CDC’s … authority to control individuals or products that pose a communicable health threat to the United States is not an instrument of general immigration policy. It confers separate and distinct authority to limit movement to prevent the spread of disease.
In fact, § 265 is not an instrument of immigration policy whatsoever. Not only are aliens subject to § 265, so are U.S. citizens! Under the provision, CDC could prohibit the “introduction” into the United States of U.S. citizens seeking to return from visits abroad to the same extent that it could prohibit the introduction of aliens.
In any event, the D.C. Circuit wrote:
The President’s [§212](f) authority, by comparison, is part of a comprehensive immigration statute that distinguishes and delineates the power to suspend entry into the United States from the power to remove … individuals who are already inside the country. We held in Huisha-Huisha that the CDC’s … power to control entry to prevent the “introduction” and spread of disease allows [summary] expulsions not subject to the INA’s removal procedures. The logic of Huisha-Huisha does not mean a Proclamation relying on the INA itself may order removals not subject to the INA’s removal procedures.
Further:
Section 265 does not use the terms “entry” or “removal” at all. Rather, it empowers the Surgeon General, through the CDC, to prevent the “introduction” of people or things anywhere in the United States that … would pose a serious risk of contagion. As Huisha-Huisha explains, “introduction into the United States of persons” is defined as “the movement of a person from a foreign country ... into the United States so as to bring the person into contact with others in the United States ... in a manner that the director determines to present a risk of transmission of a communicable disease.”… That authority over “introduction,” we determined, granted the CDC broad power to prevent diseases like COVID-19 from affecting and infecting the people in the United States. The need to prevent the “introduction” of a disease, in other words, follows contagious persons across the border as they move through the country introducing illness again and again to different populations and regions. Because viruses do not obey borders, the power to prevent the introduction of disease would be “nugatory” if it allowed the CDC only to police the borders and not curb the continued presence of people who “managed to set foot on U.S. soil.”… Section [212](f), in contrast, empowers a President only to proclaim a suspension of “entry[]”.
The court noted that in Huisha-Huisha, “We further held, at least ‘at [that] stage of the litigation,’ that the Executive could invoke Section 265 to summarily remove those individuals without providing them an opportunity to seek asylum, despite the INA’s otherwise binding requirements.” As the court stated in Huisha-Huisha:
[This] hinged on the explicit recognition that the public-health emergency authority in Section 265 conflicted with immigration law’s requirement … that “[foreign individuals] — even those who enter the country illegally — [be allowed] to apply for asylum before they are expelled.”… [L]ayering … the right to apply for asylum over the Executive’s power under Section 265 to “prohibit ... the introduction of persons” posing a threat of spreading communicable diseases … would critically weaken that emergency power. … To “harmoniz[e]” the two statutes, we reasoned that Section 265’s express authorization of the Surgeon General to effect “a suspension of the right to introduce such persons ... [as] is required in the interest of the public health,” … supported the orders’ suspension of the INA’s otherwise required asylum procedures when the “dangers” to public health “are sufficiently pronounced.”
That was the crucial difference to the D.C. Circuit. “Unlike [in] Huisha-Huisha, [RICELS] asks us to interpret only the INA itself, a comprehensive and internally consistent statute.” In Huisha-Huisha, “we [had] expressly limited the effect of our ruling by specifying that, if not deploying the statutory public health emergency power, ‘the Executive violates § [208](a)(1) when it expels [foreign individuals] before allowing them an opportunity to apply for asylum’”.
The D.C. Circuit acknowledged that the Supreme Court had concluded in its 2020 decision in DHS v. Thuraissigiam that “inadmissible or not-yet-admitted individuals who have physically entered the country will be treated under the Due Process Clause as if they were ‘stopped at the border’”. As the Supreme Court explained in Thuraissigiam, “as to ‘foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted … pursuant to law,’ ‘the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law’”. (Quoting the Supreme Court’s 1892 decision in Nishimura v. Ekiu.) Of course, here, Congress has indeed expressly spoken through § 208 as to such aliens’ right to apply for asylum.
Judge Walker, nominated by President Trump both for his district court and appellate judgeships, agreed with the majority’s conclusion. While stating that “I need not resolve — and do not purport to resolve — the question of the President’s statutory expulsion authority[, p]erhaps he has that authority; perhaps he doesn’t.” He opined that:
The text and structure of the INA suggest that … § [212](f), probably did not deal with expulsion.
[E]ver since the first federal immigration restrictions… a ban on entry was understood to authorize exclusion but not expulsion.
The INA tracked a distinction between exclusion and expulsion that arose with the dawn of federal immigration law. Ever since the first federal immigration restrictions, statutes distinguished between the power to deny entry (i.e., exclude) and the power to remove those who had already entered (i.e., expel).
[T]he history of immigration law reinforces that to look for expulsion authority, we need to look elsewhere than § [212](f).
Withholding of Removal
The D.C. Circuit also ruled that “The Proclamation and Guidance are … unlawful to the extent they suspend the statutory withholding-of-removal protections that Congress has mandat[ed].” (Quoting the Supreme Court’s decision in Aguirre-Aguirre.) The court found that “On its face, the Guidance refuses to provide persons in the United States the statutory withholding-of-removal protections against persecution that Congress has prescribed. This, it cannot do.”
What is withholding of removal? Section 241(b)(3)(A) of the INA provides that the secretary “may not remove an alien to a country if the [secretary] decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”. The Supreme Court explained in its 1984 decision in INS v. Stevic that “threatened” means “it is more likely than not that the alien would be subject to persecution on one of the specified grounds” — a more exacting standard than a “well-founded fear”, as “it does not require withholding if the alien ‘might’ or ‘could’ be subject to persecution”, and, as the Court explained in Cardoza-Fonseca, the likely persecution must be “in the country to which he would be returned”.
Further, while the granting of asylum is discretionary for eligible aliens, the granting of withholding of removal is mandatory for eligible aliens. The Supreme Court explained in Cardoza-Fonseca that:
[A]n alien who satisfies the applicable standard under § 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An alien satisfying [withholding of removal’s] stricter standard, in contrast, is automatically entitled to [it]. [Emphasis in original.]
The D.C. Circuit thus reasoned that “if the Executive wants to remove foreign individuals ‘to places prohibited by [the withholding of removal statute], it must identify a statute that creates an exception[’]”, and concluded that § 212(f) does not “create[] any exception to … mandatory withholding-of-removal”.
The courts’ rationale is persuasive to me, and it was persuasive to Judge Walker:
I agree … that the Proclamation and Guidance are “unlawful to the extent they suspend the statutory withholding-of-removal protections that Congress has mandated”.
The Executive cannot remove aliens to countries where they will be persecuted, and the Proclamation and Guidance cannot strip them of mandatory procedures that protect against that removal.
The Convention Against Torture
The D.C. Circuit explained that “Congress directed that the [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’s (CAT)] protections be implemented by regulations … and [DHS] and [DOJ] have promulgated regulations doing just that.” These can be found at 8 CFR §§ 208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, and 1208.18.
What is CAT? It is a United Nations convention, article 3 of which provides that “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’’ While the United States is a signatory, CAT is not self-executing. As the Supreme Court explained in its 2008 decision in Medellin v. Texas: “[A] ‘self-executing’ … treaty has automatic domestic effect as federal law upon ratification. Conversely, a ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.” Thus, in 1998, Congress passed the Foreign Affairs Reform and Restructuring Act which directed that “the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3”. Those regulations provide for withholding of removal for eligible aliens (and a more limited “deferral of removal” for aliens who are ineligible for withholding, such as by reason of having been convicted of a disqualifying crime).
The guidance does provide that aliens subject to President Trump’s proclamation who “manifest[] fear” will be referred for a CAT assessment. However, as the D.C. Circuit wrote:
The Guidance casts aside the congressionally required rule and collapses the process it mandates into a single interview at which applicants must, without the benefit of time to assemble evidence or to prepare a presentation, carry the ultimate burden of proving they will likely be subjected to torture. In addition, contrary to existing regulations, in the now-prescribed single “[CAT]-Only Assessment,” the applicant is not “entitled to” any “consultation period” and cannot be accompanied by a consultant or legal representative.
Finally, contrary to existing regulations, individuals facing removal under the Proclamation have no opportunity to seek an immigration judge’s review of the immigration officer’s determination.
The D.C. Circuit noted that “[a]gencies may not adopt guidance or other procedures that conflict with or disregard duly promulgated regulations” (citing the D.C. Circuit’s 2005 decision in U.S. Telecom Ass’n v. FCC) and that “The Government has not withdrawn the published regulations.” Thus, it ruled that the “Guidance is accordingly arbitrary and capricious and contrary to law to the extent it substitutes the Guidance’s less protective process for the [CAT] procedures required under existing regulations”. The court’s rationale is persuasive to me, and it was persuasive to Judge Walker, who wrote that “I agree … that the Guidance infringes on mandatory rules related to ‘[CAT’s] bar against removal to a country where the person will be tortured.’”
Conclusion
As the D.C. Circuit concluded, 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”, “does not allow the President to remove [aliens] under summary removal procedures of his own making”, “[n]or does [it] 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 … [CAT] claims”.
Again, the blame here 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. It is Congress’s responsibility to undo the damage caused by its “carefully crafted removal procedures”. As the D.C. Circuit 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.
Congress, legislate up!
End Notes
1 A District Court issued a temporary restraining order against the IFR in East Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 (N.D. Calif. 2018), and then a preliminary injunction (354 F. Supp. 3d 1094 (N.D. Calif. 2018)). The Ninth Circuit upheld the preliminary injunction in East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020), later amending its decision and denying a petition for a rehearing en banc in East Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021), available here.
2 349 F. Supp. at 857 (emphasis in original).
3 The proclamation and guidance also invoke INA § 215(a)(1). In the interest of (relative) brevity, I will not address that provision in my analysis.