Okay -- let's quickly unpack this. Normally, I'd wait for the ACLU to file suit for a TRO (and we do expect that, shortly -- maybe even by this afternoon, in California's federal courts), before reporting on it -- but this one requires prompt, if not completely polished, analysis. [I'll clean it up, later today.]
The US president (acting alone) simply hasn't the power, under the framework of international law (all as codfied into US law, by Congressional action), to do what he claims to do this morning, by simple proclamation (and interim rules at DoJ and DHS). He just. doesn't. The very bare minimum -- to change the practice here -- is an explicit Act of Congress, since this is a treaty-level obligation.
The 1951 UN Convention specifically requires individualized "credible fear" hearings (at Article 25; see also Article 1 definition of "Refugee"). Any scheme that declares an asylum seeker from a "geography" ineligible. . . violates that Convention, and the provisions of US law which codify it. Only an Act of Congress (after signing by the President) may change that -- something the Congress hasn't formally done.
Since the entire migrant "caravan" is now "outside the country of nationality" of each migrant, it is no longer unlawful, under US law, for each and every migrant to present ANYWHERE inside the US, and demand an asylum hearing. It simply cannot be unlawful. The Supreme Court has never held that arriving at a US checkpoint is required. And the Convention allows the migrant to appear in Chicago, New York or LA offices of ICE or DHS and make the asylum claim entirely LAWFULLY (Articles 31 and 33).
We are duty bound then to hold a credible fear interview and hearing. We cannot deport or detain, absent a showing of criminality, while we make this determination -- the migrant is to be released into the interior (under Article 31). This is the definition of Refugee which the US adopted in 1967:
. . . .[A "Refugee" is any person with a] well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. . . .
Don't let this sham-administration tell you otherwise. Go now, to protect your fellow humans -- documented or not so.
नमस्ते
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