Donald Trump is not a reliable source on his administration’s immigration policy.
If you take Donald Trump at his word, he wants to get rid of judges.
But it is a bad idea to take Donald Trump at his word, or to assume that just because Trump says he wants a thing, that thing is going to happen.
During a rambling press appearance Tuesday with NATO Secretary General Jens Stoltenberg, Trump went on a brief rant about all the changes to immigration policy he wanted Congress to pass, featuring some old favorites — like ending “chain migration” and the visa lottery — but including a new spin on Trump’s attacks on asylum seekers:
And we have to do something about asylum. And to be honest with you, you have to get rid of judges.
Every time — and you won’t even believe this, Mr. Secretary General — you catch somebody that’s coming illegally into your country, and they bring them to a court. But we can’t bring them to a court because you could never have that many judges. So they take their name, they take their information, and they release them. Now, we don’t release too many. We keep them. It’s called “catch and keep.” But you don’t have facilities for that. But you have to bring them through a court system. If they touch your land —one foot on your land: “Welcome to being Perry Mason. You now have a big trial.”
The “we have to get rid of judges” comment has raised some alarm from people who are especially attuned to any apparent Trump attack on democratic legitimacy and the rule of law. Even people who are properly understanding the “judges” comment as being about immigration judges are taking this as a serious declaration by Trump that he wants to end due process for people seeking asylum in the United States.
Although the comment is a vivid example of the president’s attitude toward migrants who have a legal right to seek asylum in the US, given that it was part of a press appearance in which Trump lied about his father’s birthplace and repeatedly pronounced “origins” as “oranges,” it would be foolish to take this comment as a statement of imminent administration policy.
The Trump administration is trying to allow fewer asylum seekers to the point of seeing judges
Unsurprisingly, Trump’s comments do not reflect the reality of American immigration law.
People apprehended crossing into the US without papers specifically do nothave the right to a hearing before an immigration judge to determine if they can be deported (unlike people arrested by immigration agents while living in the US). They’re eligible for what’s called “expedited removal,” or deportation without a court hearing.
However, the US has an obligation under domestic and international law not to return people to persecution — something that could happen if everyone were deported with no questions asked. So if a migrant says she fears persecution in her home country, she has a right to a screening interview with an asylum officer, to see if she’ll be allowed to apply for asylum in the US.
This is what Trump is talking about with his “one foot on your land” comment — the right to seek asylum is triggered as soon as a migrant sets foot on US soil, which is why the Trump administration is more successful at limiting asylum seekers from entering the US at ports of entry than it was at trying to stop people from being able to seek asylum after they’d arrived.
If the asylum officer determines during the screening interview that the migrant has a “credible fear” of persecution if returned, the asylum seeker is allowed to stay, file an application, and get a hearing before a judge. If the asylum officer determines there isn’t a credible fear, the asylum seeker can appeal the decision to a judge, but the odds of getting a judge to overturn a negative finding are diminishing under Trump.
“Credible fear” is a deliberately generous standard because it is designed to reduce the odds that someone is sent back who should be protected. The standard for the judge approving the asylum application is deliberately higher.
The gap between approval rates for the two is a source of great frustration for the Trump administration, which sees it as evidence of either outright fraud or at least overly generous screening processes. (The argument is that between an asylum seeker passing her credible fear screening and having her court appearance, she could disappear into the US as an unauthorized immigrant; while a substantial number of families seeking asylum don’t show up for court hearings, it’s not at all clear that the majority of them are deliberately absconding.)
But the administration’s solution isn’t to eliminate the court process. It’s to have fewer people pass the credible fear screening.
Then-Attorney General Jeff Sessions issued a ruling last year limiting the extent to which victims of domestic and gang violence could claim persecution — his ruling initially applied to screening interviews as well as the final evaluation of asylum applications, until a judge ruled against its use in “credible fear” screenings in December. The Trump administration’s asylum ban attempted to hold asylum seekers who crossed between ports of entry to a higher standard — known as “reasonable fear” — to avoid deportation without a hearing; that also got struck down in court.
Currently, under the Migrant Protection Protocols, some migrants are being held to an even higher standard to avoid being returned to Mexico while their asylum cases are on a judicial docket. That policy hasn’t yet been struck down by a judge. But even asylum seekers who fail that screening are going before an immigration judge; it’s just a matter of forcing them to wait in Mexico before they do it.
Recent reports from Border Patrol union officers indicate the administration may be trying to take credible fear screenings out of asylum officers’ hands entirely, and having Border Patrol agents do them themselves — which union officials assume will lead to fewer migrants passing the screenings. That also raises a lot of legal and policy questions, and may or may not happen, especially since Border Patrol agents are already overwhelmed in dealing with unprecedented numbers of families coming into the US without papers.
Trump occasionally insists on something vehemently enough that his administration is forced to create a policy that resembles his rants, but it’s not very frequent. Instead, the story of immigration under the Trump administration is that the administration is doing a lot of things that Trump may not know about or understand.