OPINION:
The White House is once again engaging in acts of political theater in order to avoid doing anything to secure our nation’s southern border. Recently, the New York Post, Reuters and Axios all ran articles stating that the Biden administration is examining whether or not the president has the power to close the border to foreign asylum-seekers.
This is an absurd claim. The vast majority of the people currently appearing at the border are ineligible for admission. Nevertheless, the administration is attempting to hide behind a fig leaf by claiming that it must admit any foreign national who shows up at the border and claims asylum. But this is patently false.
To begin with, despite specious claims to the contrary, neither the 1951 U.N. Refugee Convention, its 1967 Protocol; nor customary international law requires states to admit foreign nationals for the purpose of applying for asylum. As one legal scholar put it, “There is no right to asylum, and, therefore, no State is under any obligation to admit asylum seekers into their territories.”
Moreover, as a sovereign nation, the United States is under no obligation to admit foreign nationals for any reason. The Supreme Court has expressly affirmed this in at least two decisions.
In 1892, in Ekiu v. United States, the court clearly stated, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”
A little less than a century later, in Kleindienst v. Mande (1972), the high court said that “unadmitted and nonresident” aliens have “no constitutional right of entry to this country as a nonimmigrant or otherwise.”
Finally, neither the Immigration and Nationality Act nor any other provision of U.S. domestic law imposes any obligation on the United States to let asylum-seekers in. In fact, asylum is a discretionary form of relief. What does that mean? Even if an individual is permitted to file for asylum and succeeds in establishing that he or she has been a victim of persecution, granting asylum is not obligatory if such a grant is not in the best interests of the United States.
More recently, in Trump v. Hawaii (2018), the Supreme Court specifically addressed the power to close the border conferred upon the president by 8 U.S.C. §1182(f). According to the court, it gives the president the authority to suspend the entry of all aliens, or any class of aliens, by imposing any restrictions he may deem appropriate for such a period as he shall deem necessary whenever he finds that the entry of such aliens would be detrimental to the national interest.
And Trump v. Hawaii was not the first time this issue came up. In 1993, in Sale v. Haitian Refugee Centers, the Supreme Court found that § 1182(f) permitted the president to order a naval blockade of Haiti in order to prevent aliens from entering the United States illegally.
In fact, according to the Congressional Research Service, every president since 1981 has invoked § 1182(f) to exclude one or more broad classes of aliens when their admission was not in the best of the United States. Between Dec. 31, 1980, and Feb. 15, 2024, that resulted in no fewer than 90 separate proclamations imposing restrictions upon or suspending the entry of foreign nationals.
Frankly, it would be utterly impossible for the White House not to be aware of this. So, what gives? This administration is committed to a globalist, anti-border agenda. It has no desire to stop the chaos along our border with Mexico. And it wants to deceive the public in order to divert attention from its deliberate misfeasance.
That kind of political sleight of hand, however, inevitably comes with consequences. Because we have open borders, we now have record numbers of deaths linked to fentanyl. A nationwide human trafficking crisis has erupted. Innocent Americans like Laken Riley are being slaughtered by criminal illegal aliens. And all of this could be eliminated with a stroke of the president’s pen.
So, everyone who cares about secure borders and American sovereignty should be asking, when will the president use the authority that everyone but he seems to know he has to stop the chaos that has spread from the Rio Grande to the heartland?
• Matt O’Brien is the director of investigations at the Immigration Reform Law Institute and the co-host of the podcast “No Border, No Country.” Immediately prior to working for the institute, he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions in the Department of Homeland Security.
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