Outside the Beltway

Federal Judge Strikes Down Trump Administration’s Asylum Policy Changes

A Federal Judge has ruled that the Trump Administration's efforts to limit the ability of migrants to claim asylum violates Federal law.

Doug Mataconis · Tuesday, November 20, 2018 · 12 comments

A Federal Judge in California has blocked the Trump Administration’s effort to rewrite Federal asylum law to limit the methods by which someone can seek asylum pursuant to Federal law:

A federal judge on Monday ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States, dealing at least a temporary setback to the president’s attempt to clamp down on a huge wave of Central Americans crossing the border.

Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.

“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Judge Tigar, an Obama appointee, wrote in his order.

As a caravan of several thousand people journeyed toward the Southwest border, President Trump signed a proclamation on Nov. 9 that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Only those who entered the country through a port of entry would be eligible, he said, invoking national security powers to protect the integrity of the United States borders.

Within days, the administration submitted a rule to the federal register, letting it go into effect immediately and without the customary period for public comment.

But the rule overhauled longstanding asylum laws that ensure people fleeing persecution can seek safety in the United States, regardless of how they entered the country. Advocacy groups, including the Southern Poverty Law Center and the American Civil Liberties Union, swiftly sued the administration for effectively introducing what they deemed an asylum ban.

After the judge’s ruling on Monday, Lee Gelernt, the A.C.L.U. attorney who argued the case, said, “The court made clear that the administration does not have the power to override Congress and that, absent judicial intervention, real harm will occur.”

“This is a critical step in fighting back against President Trump’s war on asylum seekers,” Melissa Crow, senior supervising attorney for the Southern Poverty Law Center, one of the other organizations that brought the case, said in a statement. “While the new rule purports to facilitate orderly processing of asylum seekers at ports of entry, Customs and Border Protection has a longstanding policy and practice of turning back individuals who do exactly what the rule prescribes. These practices are clearly unlawful and cannot stand.”

There was no immediate comment from the Trump administration.

Presidents have broad discretion on immigration matters. But the court’s ruling shows that such discretion has limits, said Stephen Yale-Loehr, an immigration scholar at Cornell Law School.

“The ruling is a significant blow to the administration’s efforts to unilaterally change asylum law. Ultimately this may have to go to the Supreme Court for a final ruling,” said Mr. Yale-Loehr.

The advocacy groups accused the government of “violating Congress’s clear command that manner of entry cannot constitute a categorical asylum bar” in their complaint. They also said the administration had violated federal guidelines by not allowing public comment on the rule.

But Trump administration officials defended the regulatory change, arguing that the president was responding to a surge in migrants seeking asylum based on frivolous claims, which ultimately lead their cases to be denied by an immigration judge. The migrants then ignore any orders to leave, and remain unlawfully in the country.

“The president has sought to halt this dangerous and illegal practice and regain control of the border,” government lawyers said in court filings.

(…)

United States immigration laws stipulate that foreigners who touch American soil are eligible to apply for asylum. They cannot be deported immediately. They are eligible to have a so-called credible fear interview with an asylum officer, a cursory screening that the overwhelming majority of applicants pass. As result, most of the migrants are released with a date to appear in court.

More from The Washington Post:

A federal judge temporarily blocked the Trump administration from denying asylum to migrants who illegally cross the southern border into the United States, saying the policy likely violated federal law on asylum eligibility.

In a ruling late Monday, Jon S. Tigar of the U.S. District Court in San Francisco issued a temporary nationwide restraining order barring enforcement of the policy. President Trump’s action was announced Nov. 9, though the White House had as early as last month floated dramatic changes to the way the United States affords sanctuary to people fleeing persecution in their home countries.

The judge’s order remains in effect until Dec. 19, at which point the court will consider arguments for a permanent order. The administration offered no immediate comment overnight but has routinely appealed adverse decisions.

The president’s decree, now blocked, came just after the midterm election campaign, in which Trump made immigration and national security the GOP’s closing argument. He and his allies spread fear about the “Caravan heading to the Southern Border,” which, as he asserted without evidence in one pre-election tweet, included “criminals and unknown Middle Easterners.” In another, he warned of “some very bad thugs and gang members.” Labeling the movements of Central American migrants a “national emergency,” Trump last month deployed active-duty troops to the border.

But the federal judge said the president could not shift asylum policy on his own.

“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” wrote the judge, nominated to the federal bench in 2012 by President Barack Obama. He reasoned that the “failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process.”

The ruling was the latest in a string of court decisions blocking the administration’s hard-line immigration policies, including its efforts to crack down on “sanctuary cities” and to rescind the Deferred Action for Childhood Arrivals (DACA) program that affords legal protections for hundreds of thousands of young undocumented immigrants who were brought to the United States as children. The net effect, barring Supreme Court reversals, has been to substantially weaken the hand of presidents in an area where their authority has in the past been expansive.

Still, the administration has not been without victories. In June, the Supreme Court, by a 5-to-4 vote, upheld a revised version of the travel ban that aimed to keep foreigners from several Muslim-majority nations from entering the country.

The asylum case was brought by the American Civil Liberties Union and other advocacy groups on behalf of East Bay Sanctuary Covenant. The order reflects the judge’s view that the plaintiffs are likely to succeed on the merits, and would suffer irreparable injury from the executive action.

The rule pursued by the Trump administration would allow only people who cross at legal checkpoints on the southern border to request asylum, while those entering elsewhere would be able to seek a temporary form of protection that is harder to win and doesn’t yield full citizenship. The changes would amount to a transformation of long-established asylum procedures, codified both at the international level and by Congress.

In his proclamation, Trump said the changes were necessary to prepare for the caravan’s arrival, arguing that asylum seekers had no “lawful basis for admission into our country.” In justifying the policy, the administration relied on the same emergency authority invoked as grounds for the “travel ban.”

In a hearing Monday, Scott Stewart, a lawyer for the Justice Department, spoke of a “crushing strain” of migrants attempting to cross the border illegally. He alleged that most asylum claims were “ultimately meritless.”

But the judge seemed skeptical, observing that border apprehensions are near historic lows and that, regardless, federal law says all people on U.S. soil can apply for asylum, no matter how they arrived.

“If this rule stays in effect, people are going to die,” Melissa Crow, senior supervising attorney with the Southern Poverty Law Center, said after the hearing. “There are going to be people who fall through the cracks in our system.”

Tigar voiced concern for the fate of asylum seekers under the changes. The administration’s rule, he observed, would force individuals “to choose between violence at the border, violence at home, or giving up a pathway to refugee status.”

And in his decision, he wrote that the government’s argument that the manner of entry can be the lone factor rendering a migrant ineligible for asylum “strains credulity.”

In addition to straining credulity, the President’s proclamation, which he based on the alleged threat posed by a “caravan” consisting mostly poor women, children, and families seeking asylum from Central American nations on the verge of chaos thanks to government corruption and gang violence, also clearly violates applicable law. Specifically, I am referring to the relevant asylum laws in the United States Code, which can be found at 8 U.S.C. 1158 and the statutes that follow. For purposes of examining the President’s purported attempt to change the law, the relevant law can be found right at the beginning of the relevant statutes, at 8 U.S.C. 1158(a) which states:

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 and including an alien who is brought to the United States after having been interdicted in international or United States waters),irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title

The highlighted section makes clear that an alien making a claim of asylum need not appear only at a designated port of entry, and further provides that the right to claim asylum, which exists pursuant to both this statute and international treaties to which the United States is a signatory, applies regardless of the alien’s status. This means that an alien who has crossed into the United States illegally, or who is in the country illegally due to the fact that they overstayed or violated the terms of their visa, is still entitled to make an asylum claim and that they must be given a hearing on that claim. There are exceptions to this provision of course, but they apply in only a limited number of cases that would not be relevant to the vast majority of the asylum seekers making their way from Central America or those who are already in the country and either being detained pending a hearing or allowed to be released on their own recognizance pending a hearing at a future date.

In his ruling, Judge Jon S. Tigar, an Obama appointee who has been on the District Court in San Francisco since 2012, held that the Trump Administration violated this provision of Federal law when it set a policy that only putative asylum seekers who had presented themselves at a designated port of entry would be considered eligible for asylum. All other purported asylum requests would be considered invalid and those persons would be processed for immediate deportation and return to their home countries. As Tigar notes, though, and as the law makes clear, a valid plea of asylum as a defense to deportation can be presented regardless of how the alien in question arrived in the country and regardless of their legal status at the time that the claim is made. While the law does give the Executive Branch some discretion regarding how asylum cases can be treated, Judge Tigar makes clear that this discretion does not extend as far as the Administration is trying to take it here. As a result, the new policy is invalid and, at least for the moment, cannot be enforced pending future legal proceedings.

Under the terms of Judge Tigar’s order, the present injunction will remain in place until at least December 19th in anticipation of there being further briefing and a hearing on the issue of whether or not the injunction should be made permanent pending a final ruling in the case. In theory, the Administration could seek to get this order stayed by either the Ninth Circuit Court of Appeals or the Supreme Court, but given the fact that the Order entered yesterday contemplates immediate further briefing and a ruling in the near future it seems unlikely that either of those routes would be fruitful. Instead, this injunction will remain in place.

As a matter of law, there seems to be very little question that Judge Tigar is on the right of this question and that any appeal would likely be unsuccessful. The statute makes clear that the right to seek asylum is not dependent on having arrived at a designated port of entry, nor is it dependent upon the question of whether or not the asylum seeker is in the country legally. Given this, it seems clear that the Trump Administration went too far in attempting to rewrite immigration law via Executive Branch decree, something that, ironically enough, Republicans frequently accused the Obama Administration of having done with regard to programs such as Deferred Action for Childhood Arrivals. If the Administration were smart, it would withdraw this proclamation and start over again because it’s hard to see how this will survive legally if they continue to fight.

Here’s the opinion:

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