By Jocelyn Cortez
On Nov. 9, the President of the United States issued a proclamation and published an interim rule severely restricting the ability to apply for asylum. Asylum is a form of legal immigration granted when one can prove that they fear returning to their country of citizenship because of persecution based on religion, nationality, race, political opinion or membership in a social group. Specifically, the proclamation (aimed at Central Americans) lays out the following directives: (1) suspend entry of “certain aliens” and channel them to ports of entry to permit them to “avail themselves of our asylum system” and (2) for those who do not present themselves at the designated ports of entry, summarily disqualify them from asylum.
This proclamation effectively re-writes established law and destroys due process.
Today, the U.S.-Mexico border is not operating as the President proclaimed. In fact, the border is all but shut down. Reports from volunteers on the ground say that less than a hundred people a day are being called to “avail themselves of our asylum system” when there are accounts of 10,000 people waiting to apply. This is a gross violation of due process as well as a violation of the black letter of the law. A plain reading of Immigration and Nationality Act (“INA”) section 208(a)(1) exposes this administration’s distortion of a basic federal statute: “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 in accordance with this section […].”
Funneling people to a specific port of entry and then refusing to allow them to apply for asylum in a reasonable manner violates the law. Forbidding people from applying for asylum because they are not at a specific port of entry is also contrary to law. The proclamation raises the question: “What’s different about these would-be immigrants that would make a country willing to violate its own laws?” I submit there is no difference.
Like many of you, my grandparents entered the United States without authorization. Like many migrants blockaded at the U.S. border today, my grandparents left Central America in the hope of finding safety, stability and a new home for their family. In Las Vegas, my grandfather worked as a shoemaker for the various shows and its grand dancers on the strip. My grandmother worked at the Stardust, learned to play with snow, and fell in love with John Wayne. This is how my family’s magical journey from El Salvador to Fabulous Las Vegas began.
During the 1980s, members of my extended family and I also fled El Salvador, seeking refuge from a violent war, a fight between left-wing guerillas and the right-wing military government backed, in large part, by the U.S. government. The consequence of my grandparents’ entry “without inspection” (to use a legal term of art) and subsequent receipt of legal status has been to spur a generation of Las Vegans who have committed their lives to Nevada and the nation. My grandparents (one of whom is now deceased and the other a proud U.S. citizen) can boast of many successful professionals among their grandchildren including: people who have served this country in the military and in the public sector, an educator at the Clark County School District, an electrical engineer, a software developer, a geographer, a leader in the hospitality industry, various professionals in real estate, and an attorney (yours truly).
I do not tell this story to tout our family as being different or special, because we are not. We are very much like the people stuck in Tijuana who were bombarded with tear gas and told they are unwanted in the U.S. We were — and are — people fleeing corruption, violence, extortion and despair. My family and those at the U.S. border are one and the same.
For many of you reading this, your grandparents or great-grandparents came to the U.S. the same way in which my grandparents did. This was despite characterizations in “American Passage” by Vincent Cannato in which, for example, Italians were described as “bravos and cutthroats” and as people who sought to “carry their feuds and bloody quarrels in the United States.” In 1907, Ellis Island processed about 2,700 immigrants a day. Crucially, those immigrants were not asked for visas — or reasons, even, as to why they were coming to the U.S.; their mere presence and a basic healthy disposition was enough for them to enter.
I write this to remind us all of… ourselves. I also write to remind us that we are a nation of laws, as this administration itself so often proclaims. There is no legitimate justification for this border blockade. Perhaps it is being done to snag a good headline, more favorable approval rates. Perhaps it is to fulfill a more sinister and hateful intention. Whatever the reason, this administration must immediately reopen the border and permit people to apply for asylum as the law requires.
In a court order dated Dec. 7, in yet another judicial blow to the Trump Administration, the Circuit Court of Appeals for the Ninth Circuit agreed, holding that it would uphold a lower court’s temporary restraining order stopping the enforcement of the Nov. 9 proclamation. Just last night, the administration dug in its heels on its untenable legal position by asking the U.S. Supreme Court to overturn the 9th Circuit’s decision. Essentially, the administration is asking the high court of the U.S. to sanction its revision to the INA, which would throw our country’s separation of powers policy into crisis.
This legal battle is perhaps just beginning, and it remains to be seen whether there will be relief for asylum seekers at the U.S.-Mexico border anytime soon. But I suspect that if the administration upheld the letter of the law as it is written, the grandchildren of the families at the border today would tell stories similar to yours and mine about how they, too, enriched and uplifted their communities — and the United States of America.
An immigrant from El Salvador, Jocelyn grew up in Las Vegas and graduated from UNLV. In 2006, she also graduated from the James E. Rogers College of Law at the University of Arizona. Since then she has practiced immigration and employment discrimination law.