Caravan’s absurd lawsuit against Trump treads dangerous territory

The migrant caravan making its inexorable progress toward the United States has triggered angry rhetoric by President Trump and the deployment of active duty troops and the National Guard at the southern border. The Trump administration this week escalated matters by issuing a rule barring asylum seekers who enter the United States in violation of a presidential proclamation from being granted asylum.

The caravan has fired off a shot of its own against President Trump: a lawsuit alleging violations of the Fifth Amendment and the Flores Settlement. It’s a dud. Here’s why:

{mosads}The lawsuit claims to represent a class of “all persons Mexican, Central American, or South American citizens” traveling to the United States or who have attempted entry since Oct. 31, 2018. The plaintiffs claim a “well-documented human rights crisis” in Guatemala, Honduras and El Salvador is prompting thousands to seek asylum in the United States.

It is not clear why they omitted Syrians, Sudanese, Somalis, Bangladeshis, et. al. — in other words, why not a class action on anyone’s behalf? After all, the claims are equally applicable to others experiencing human rights crises and interested in seeking asylum in the United States.

Compounding this absurdity, the lawsuit alleges Trump’s actions are “shockingly unconstitutional” and that he “continues to abuse the law, including constitutional rights, to deter Central Americans from exercising their lawful right to seek asylum in the United States.”

The suit claims that Trump is violating the Flores Agreement through his administration’s practice of housing migrant children in tents. The lawsuit’s lead plaintiff, Maria Doris Pineda, complains that indefinite detention in tents is “unconstitutional conduct by our president.” But Trump is not Pineda’s president; she is not a U.S. citizen.

It also is not clear what standing Pineda has to sue or enforce the provisions of the Flores Agreement. As the D.C. District Court stated in Berlin Democratic Club v. Rumsfeld (1976), “When the non-resident alien does not make application under a statute to the United States for certain action, or is not subjected to its courts, but is harmed in his own country, he cannot and should not expect entitlement to the advantages of a United States court.”

Pineda has no “contact with the United States”; she has not been “thrust into American courts” and has not been “denied application for a benefit” provided by U.S. law. Therefore, she has no basis for “expectation or hope” that she could utilize that legal system for her benefit. Crucially, the United States has not imposed its law on Pineda, and she is free to seek asylum elsewhere, including in Mexico, which she must cross first. It is her choice to decline asylum under Mexican law and instead seek asylum in America. This choice does not beget an entitlement to the protection of U.S. courts.

There is no evidence the Flores Agreement has been violated — the children named in the lawsuit are not even close to detention in tents in the United States.

The plaintiffs assert that Trump “simply cannot stop them from legally [seeking asylum] by using military, or anyone.” They allege violations of the Fifth Amendment, which states “no person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” They plead “a liberty interest under the due process clause in being free from unwarranted government detention.”

The plaintiffs also argue that detaining them in tents until they are deported, without the ability to “challenge their categorization in a class of aliens subject to mandatory detention,” breaches their “substantive due process rights.” Such deterrence to migration, they argue, is “unconstitutional.”

Here’s the problem: They don’t have a right to asylum. Asylum is a discretionary remedy, as established by case law, and the government has the right to reject asylum claims even of those who satisfy eligibility requirements. For example, in INS v Cardozo (1987), the Supreme Court ruled “there is no entitlement to asylum; it is only granted to eligible refugees pursuant to the attorney general’s discretion.”

Moreover, Pineda and the other complainants are not on U.S. soil. If their theory were to be adopted, any person on earth could challenge any U.S. policy initiative on grounds that it violates due process rights, and seek to enjoin U.S. government activities.

The reality is that governments everywhere have a right to secure their borders and prevent illegal entry. In some cases, this might amount to actions taken outside the borders in a preventative way. For example, faced with a flurry of illegal boat arrivals, the Australian government implemented Operation Sovereign Borders in 2013 to prevent them from reaching Australian shores, and processed asylum seekers in offshore facilities. The European Union — which has strong fundamental rights protections comparable to the United States — is mooting offshore processing of refugees to deter mass movements of people.

Finally, there is no necessity for legal action to prevent “unwarranted government detention.” There is an easier option: Pineda is not under detention and is not obligated to subject herself to detention. If she stays home, or seeks asylum in Mexico, she wouldn’t be subject to U.S. detention.

This lawsuit deserves to be tossed out of court. To be sure, many migrants are fleeing horrific conditions, and deserve sympathy and humanitarian assistance. However, it would be an absurdity if millions of such people could sue in U.S. courts in reliance upon constitutional provisions. The border policy would be in shambles and courts would be inundated with claims from foreigners.

The court is likely to side with the U.S. government, given recent trends that emphasize the sovereign rights of the state to protect its borders, such as the Supreme Court’s ruling to uphold Trump’s travel ban. The caravan’s legal team ought to take the hint and advise their clients to avoid this hazardous journey.

Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.