Trump Is Tweeting Against Granting Asylum & It Could Have Legal Implications

by Hannah Golden
Alex Wong/Getty Images News/Getty Images

President Donald Trump last week made a phenomenal U-turn regarding his immigration policy, but posts on social media over the weekend left little room for confusion on the commander-in-chief's position. The question has emerged anew whether Trump can turn people away at the border, including those seeking asylum. In recent tweets, the president has signaled a desire to.

"When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came," Trump tweeted Sunday, June 24. Just hours later, the president doubled-down, tweeting on Monday, June 25, "People must simply be stopped at the Border and told they cannot come into the U.S. illegally."

His tweets came on the heels of issuing an executive order on June 20 ending his administration's practice of separating families at the border.

The tweets also follow reports on June 18 that asylum seekers who arrived at the U.S. through proper ports of entry have had to face lengthy delays in processing and in some cases, have been turned away entirely, according to The Arizona Republic.

Elite Daily reached out to the White House, Department of Justice (DOJ), and Department of Homeland Security (DHS) for comment on the tweets and asylum seekers. A spokesperson for the DHS referred Elite Daily to their official comment, which reads, in part,

DHS complies with Federal law with regard to processing individuals claiming asylum at ports of entry. ... As the number of arriving aliens determined to be inadmissible at ports of entry continues to rise, CBP must prioritize its limited resources to ensure its primary mission is being executed.

Asylum seekers have certain specific rights afforded them under both international and U.S. law. International law mandates that the U.S. cannot send back those fleeing legitimate danger and persecution in their home country, especially and including those who face torture should they return. (This was established by the United Nations' 1951 Refugee Convention, the 1967 UN Protocol and the 1980 Refugee Act, to which the U.S. is bound.)

But in the U.S., obtaining asylum is a complicated process. Those seeking asylum must first pass a credibility test (via an interview with an asylum officer) to establish that they face actual persecution in their home country. If they pass that, they can formally seek asylum, which usually moves forward to immigration court and involves serious documentation and evidence; for example, witness testimonies or medical records.

Even if someone crosses the border illegally, if they say they wish to claim asylum, border agents are to refer that individual for an interview; their claim can be heard even though the broke U.S. law for illegal entry.

For those that have been removed from the country and re-enter illegally, there is the reasonable fear test — essentially, another interview with an asylum officer to determine if they are likely to face torture upon returning to their country. (The Convention Against Torture prohibits the U.S. from sending them back if they do face that danger.)

The American Civil Liberties Union (ACLU) also claims that the Trump administration has been detaining asylum seekers, a practice it alleges is unconstitutional and in violation of national and international law protecting refugees. In their comment on recent reporting, the DHS said it generally releases families within 20 days, referring to the Flores settlement, adding,

DHS is not referring for prosecutions families or individuals arriving at ports of entry or attempting to enter the country through legal means. ... These families and individuals have not broken the law and will be processed accordingly. If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry.

DHS Secretary Kirstjen Nielsen has said that illegal immigrants have the "option" to enter the U.S. through proper channels (U.S. ports of entry), but it's easier said than done, for a number of reasons. For one: The massive backlog and influx of people, reportedly causing huge wait times at ports of entry. (And as noted before: Everyone entering the country is supposed to be given an interview if they say they seek asylum.)

Judge Dana Leigh Marks, a San Francisco-based immigration judge, told Beltway Breakfast that both international and federal law "make it very clear that you do not punish an asylum seeker for the manner of his or her entry." The judge added, "There is an international understanding that people fleeing for their lives can't follow all of the normal processes that may take months or years to work out — they have to get to safety immediately."

As for the president's tweets, the content was interpreted as unconstitutional by many as a suggestion to deny due process, which the Fifth Amendment maintains for everyone in the U.S., including non-citizens. The White House did not respond to Elite Daily's request for comment on his tweets.

"Trump's assertion of unreviewable power to serve as prosecutor, judge, and jury of every asylum-seeker's claim of right to be here has no basis in our Constitution or laws," tweeted Harvard Law professor Laurence H. Tribe on Sunday. "It is a power grab one would expect of a fascist dictator, beyond even George III."

Following Monday's tweet by the president, Tribe weighed in again. "Trump's latest scam offers this typically gross deal: 'We'll return your toddler if you give up your asylum claim.' That's flatly unconstitutional extortion."

Ronald Klain, who served as an aide under Presidents Barack Obama and Bill Clinton, also interpreted Trump's Sunday tweet in bleak terms, writing, "If Trump can deny due process to those allegedly here unlawfully, ICE can grab YOU, allege you aren't a citizen & deport you w/out a hearing."

Trump's tweets also come on the heels of his decision to eliminate the Family Case Manage Program (FCMP), a program instituted by President Obama to keep families together while they sought asylum. The program cost the government only $36 a day to implement.

As for whether the president's tweets will have any impact or bearing on policy moving forward, this remains unclear. But the suggestion itself was clearly concerning to some legal and immigration advocates.