RAICES v. Noem

On January 20, 2025, President Trump issued several executive orders concerning immigration enforcement in the interior of the United States and at the border, including a proclamation titled “Guaranteeing the States Protection Against Invasion.” The proclamation invokes a provision of the Immigration and Nationality Act—Section 212(f)—to “suspend the entry” of noncitizens at the U.S. southern border. The proclamation also cites Article IV, Section 4 of the U.S. Constitution to claim that the president can override immigration laws passed by Congress in order to protect individual states from “invasion.” Through this proclamation, Trump is attempting to shut down access to asylum at the southern border, even though the law is clear that people seeking safety have the right to ask for protection. The proclamation makes no exceptions for families, survivors of human trafficking, or children.

Seeking asylum is legal. President Trump’s illegal proclamation violates the Immigration and Nationality Act and several other laws passed by Congress, under which any noncitizen who is inside or arriving in the United States may legally apply for asylum. Additionally, under both domestic law and international treaties with which our government is obligated to comply, the United States may not return people to countries where they are likely to face persecution or torture. At a minimum, immigration officers must refer people who express a desire to seek asylum or a fear of return for a screening interview with an asylum officer to determine whether they may qualify for protection. The law provides certain additional protections for vulnerable children fleeing without a parent or guardian, who must have the opportunity to seek protection before an immigration judge.

Presidential authority to “suspend entry” does not override these fundamental legal protections. For more than 40 years, the government’s position has been clear: section 212(f) of the Immigration and Nationality Act does not affect noncitizens’ ability to apply for asylum. President Trump is trying to exploit one provision of the Act to upend the entire legal system enacted by Congress.  

The proclamation is an insult to the U.S. Constitution and our government’s system of checks and balances. The proclamation draws on racist and dehumanizing stereotypes to claim that there is an “invasion” at the U.S.-Mexico border, and therefore the president can claim powers under Articles II and IV to “protect” the states. But that is not true. Migration across borders is a product of the current geopolitical reality, and immigrants and refugees are people, not invading forces. Families, children, and adults who look to the United States as a beacon of hope and who try to follow the legal process to seek protection are not a threat. The United States is not at war, and no country is trying to “invade” our borders. In fact, encounters at the southern border are at their lowest levels in many years.

The proclamation is an unlawful power grab by the executive branch. It states that the suspension of asylum processing will remain in place “until I [President Trump] determine that the invasion has concluded.” But what constitutes an “invasion” is not defined, nor are any benchmarks provided to determine when such an “invasion” has ended. President Trump claims he may unilaterally disregard laws passed by Congress and seize more power for himself. However, under our system of government, Congress passes laws, and all of us, including the president, are subject to those laws.

The proclamation is already having a devastating impact. The organizational plaintiffs bringing this case—RAICES, Las Americas Immigrant Advocacy Center, and the Florence Immigrant & Refugee Rights Project—provide vital legal services to people seeking asylum at the border. Their operations have been completely derailed by the proclamation. Immigration officers have told the people they serve that asylum “does not exist.” Our plaintiffs have seen informational flyers about the asylum process torn down from the walls of immigration facilities. People have been deported without any opportunity to speak to a loved one, friend, or attorney and ask for help. A Nicaraguan activist seeking protection from political repression in her home country, who lawfully presented herself at the border to seek asylum, was told that by “order of President Trump, no one could pass through or request asylum.”