By John Hostettler for RealClearPolitics
When President Biden recently signed executive orders effectively reversing the previous administration’s efforts to reduce the increase in illegal crossings on the southern border in 2019, he stated, “I’m not making a new law. I eliminate bad guidelines. “
The apparent intent of the statement was to dispel any evidence that the newly elected president was violating the constitutionally exclusive legislative power of Congress.
However, perusing one of these orders reveals that one of the President’s initiatives seems to have crossed his mind.
The order includes a provision to “conduct a comprehensive review of current” executive policy “governing asylum seekers … to assess whether the United States provides protection from individuals fleeing domestic or gang violence in a way which corresponds to international standards “.
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At first glance, this seems unnecessary because US asylum law is already compatible with “international standards”.
What is not so convenient for the man who made this “no new law” proclamation, however, is that these international standards contain no language that could be inferred to mean that they “are fleeing domestic or gang violence.”
Much of the US asylum law was enacted because it became a party to the 1951 Convention on the Status of Refugees and the subsequent 1967 Protocol.
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According to federal law, the US government can “grant asylum to a foreigner who has sought asylum” if the government “determines that foreigner is a refugee”. The key to the current discussion is the definition of the word “refugee”.
A refugee is defined in federal law in a language practically identical to the language established in the 1951 Convention. A “refugee” is therefore “any person who is outside the country of their national home country or, if they do not have one, outside the country in which they“ had their last habitual residence and to which they cannot or do not want to return and that is unable or unwilling to avail of the protection of that country due to persecution or a reasonable fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion. ”
In 2018, in response to a series of asylum applications from individuals who became victims of non-state actors (e.g. spouses, gang members) as opposed to persecution based on government policy, then-Attorney General Jeff Sessions issued an interlocutory decision specifying a distinction between the two classes and effective disqualification of those who could not prove political persecution.
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This guideline guideline – clearly in accordance with federal law and the “international standards” – was classified as illegal by a federal district judge.
There are now signs that the Biden government is sending signals of its stance to the wider legal community, including possibly the federal judiciary.
In a lawsuit filed last week by the Massachusetts ACLU and a Boston-based law firm, messaging that incorporates the text of the law and President Biden’s command appears to prevail.
In an effort to reverse a Trump administration policy using Public Health Act to deny entry to the United States due to the COVID pandemic, representatives of the two litigants appear to be copying their topics of conversation from the President’s order.
In his statement on the law firm’s motivation to file the complaint against the US government, a senior attorney said, “We are proud of the work we are doing to reunite families who seek refuge in the US … [and who are] in our immigration system … flee violence and persecution in their home countries. “
In contrast to political persecution, there is no legal basis for granting asylum on the basis of “fleeing violence”.
But apparently that doesn’t prevent President Biden and like-minded lawyers from actually arguing that the Statute is just a foundation on which the executive and judiciary should be built.
So much for the rule of law.
This likely driver of mass migration towards the US southern border is compounded by the climate of violence in the Northern Triangle countries – Guatemala, Honduras and El Salvador – and the understandable desire for their nationals to flee.
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Former U.S. Assistant Attorney and Senior Fellow on Border Security at the Texas Public Policy Foundation Josh Jones, given the power and influence of violent gangs, much of the Northern Triangle population would likely qualify under the revised rules.
In addition, Jones notes that if one or more transnational criminal organizations based in Mexico were classified as a “gang” for asylum reasons, millions of Mexicans in the US could quickly apply for asylum on the basis of gang violence.
As a signatory to international agreements, the provisions of which form the basis of US asylum law, nothing prevents our Union from expanding those provisions.
If, however, President Biden’s claim that he was not trying to legislate is to give credibility for no other reason, it should be Congress that accepts its constitutional role and legislates this enlargement.
And if Congress should do so, we as a people can hold the legitimately empowered branch of federal government accountable for the consequences on the southern border.
Syndicated with permission from RealClearWire.
John Hostettler is a vice president of federal affairs and trusts the Texas Public Policy Foundation. He previously served six times in the United States House of Representatives from 1995 to 2007, where he served as Chairman of the Justice Committee’s Subcommittee on Immigration, Border Security and Claims for three terms.
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