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Court Declines to Block New Trump Administration Rule Barring Most Asylum Petitions Trump’s Latest Attempt to Bar Asylum Seekers Is Blocked After a Day of Dueling Rulings
(about 8 hours later)
WASHINGTON — A federal judge on Wednesday let stand a new rule that bars migrants who failed to apply for asylum in at least one country on their way to the southwest border from obtaining protections in the United States, dealing the Trump administration a temporary win. LOS ANGELES — A federal judge on Wednesday ordered the Trump administration to continue accepting asylum claims from all eligible migrants arriving in the United States, temporarily thwarting the president’s latest attempt to stanch the flow of migrants crossing the southern border.
Judge Timothy J. Kelly of the Federal District Court in Washington declined to issue a temporary restraining order that would have blocked the government from effectively banning asylum for most Central American migrants, who have been arriving in record numbers this year. Judge Jon S. Tigar of the United States District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. It would have also affected many migrants from Africa, Asia and other regions.
The rule, now being applied on a limited basis in Texas, requires migrants to seek asylum in the first safe country they arrive in — in most of the current cases, Mexico. The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, briefly delivering the administration a win. But Judge Tigar’s order prevents the rule from being carried out until the legal issues can be debated more fully.
“I do not find on this limited record the plaintiffs have provided sufficient evidence of a certain great and immediate harm to meet this high burden,” Judge Kelly said on Wednesday. The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum seekers arriving at the southern border, the policy would virtually terminate asylum there.
Under the policy, which the administration announced on July 15, only immigrants who had officially lost their bids for asylum in another country through which they traveled or who had been victims of “severe” human trafficking are permitted to apply for asylum in the United States. “This new rule is likely invalid because it is inconsistent with the existing asylum laws,” Judge Tigar wrote in his ruling on Wednesday, adding that the government’s decision to put it in place was “arbitrary and capricious.”
Hondurans and Salvadorans have to apply for asylum and be denied in Guatemala or Mexico before they became eligible to apply in the United States, and Guatemalans have to apply and be denied in Mexico. The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter where they come from. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case under review Wednesday in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and Refugee and Immigrant Center for Education and Legal Services. The government, which is expected to appeal the decision, has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum seekers with legitimate cases who must wait longer to secure the protection they deserve.
The groups had asked the court to find that Congress did not intend that mere transit through another country would render an applicant ineligible for asylum in the United States, and to rule that the policy did not comply with required procedural steps. Judge Kelly, however, disputed the plaintiffs’ contention that Attorney General William P. Barr overstepped legal requirements when issuing the rule. Under the policy, which the administration announced on July 15, only immigrants who have officially lost their bids for asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States.
“I think at this point, the plaintiffs are reading too strictly a limitation on the Attorney General’s authority,” Judge Kelly said. Hondurans and Salvadorans have to apply for asylum and be denied in Guatemala or Mexico before they become eligible to apply in the United States, and Guatemalans have to apply and be denied in Mexico.
He also found that the two advocacy organizations did not provide sufficient support for the contention that there would be “irreparable harm” to the plaintiffs in the case if an immediate, temporary block to the policy were not imposed. While the rule would impact migrants seeking asylum, “The plaintiffs before me here are not asylum seekers,” the judge said. The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter how they got to the United States. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and Refugee and Immigrant Center for Education and Legal Services, or Raices.
“They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he said. “The court recognized, as it did with the first asylum ban, that the Trump administration was attempting an unlawful end run around asylum protections enacted by Congress,” said Lee Gelernt, the A.C.L.U. lawyer who argued the case in San Francisco. The A.C.L.U. was joined by the Center for Constitutional Rights and the Southern Poverty Law Center.
Claudia Cubas, the Capital Area Immigrants’ Rights Coalition’s litigation director, said the organization was disappointed in the decision. “This new rule is contrary to our laws, and we will continue to challenge this attempt to remove asylum eligibly from those who are fleeing violence and persecution around the world,” Ms. Cubas said in a statement. The groups argued that immigration laws enacted by Congress expressly state that a person is ineligible for asylum only if the applicant is “firmly resettled” in another country before arriving in the United States. The laws also require an asylum seeker to request protection elsewhere only if the United States has entered into an agreement with that country and the applicant was guaranteed a “full and fair procedure” there, they said.
In recent years, the number of migrants petitioning through the asylum process has sharply increased. A Justice Department spokesman contested the argument that the rule defied the law, saying that Congress gave the attorney general and homeland security secretary license to bar certain categories of migrants. “The bar here falls well within that broad grant of authority,” he said. “The district court was wrong to conclude otherwise.”
In record numbers, migrant families and unaccompanied children have been turning themselves in to Border Patrol agents and requesting asylum, which typically enables them to remain in the United States for years as their cases wind through the backlogged immigration courts. Only about 20 percent of them ultimately win asylum, according to the government, and many of those whose applications are rejected remain in the country unlawfully. During a hearing in the case on Wednesday, a lawyer for the Justice Department, Scott Stewart, said that a large influx of migrant families had spawned a “crisis” that had become “particularly stark” and created a “strain” on the asylum system.
The majority of the 688,375 migrants who were encountered at the border since the beginning of the fiscal year that began in October have come from Central America. Judge Kelly did seem to concur with the administration’s contention that there was a need to contain migration numbers at the border. “Migrants understand the basics of the incentives and are informed about how changes in law and policy can affect their options,” Mr. Stewart told the judge.
“The records suggest our immigration system at the border has been severely strained and that such an increase, if it occurred, would at minimum have negative repercussions,” the judge said. Judge Tigar voiced concern about forcing asylum seekers to apply for protection in Mexico or Guatemala. “We don’t see how anyone could read this record and think those are safe countries,” he said, referring to the rule’s language that migrants must apply to the first safe country.
The administration announced the new asylum policy despite the fact that Guatemala and Mexico had not agreed to the plan, which means those countries have made no assurances that they would grant asylum to migrants who were intending to go to the United States. The judge also said that the government did not address the “adequacy of the asylum system in Guatemala,” which is not equipped to handle a surge in applications.
The Trump administration has been negotiating for months with Guatemala and Mexico in the hope of reducing the number of asylum seekers showing up at the nation’s southern border. Talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting that had been scheduled for July 15 at the White House. Talks with Mexico remain in flux. Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said it was inhumane and cruel to force people fleeing violence to seek safety in places that are as dangerous as the homes they fled. “Everyone seeking protection has the right to humane treatment and a fair asylum process under U.S. and international law,” she said.
In November, President Trump unveiled a separate policy 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, not those who entered illegally between ports, even if they turned themselves in. In federal court in Washington, two advocacy groups made similar arguments against the new policy.
Judge Jon S. Tigar of the Federal District Court in San Francisco, who is also hearing the second case on the new asylum rule, issued a temporary restraining order blocking the implementation of that policy. The case is currently on appeal in the Ninth Circuit. The government sought to stay the federal court’s ruling pending resolution of the case, but the Supreme Court, in a 5-4 ruling, declined to reinstate the policy. But that judge, Timothy J. Kelly, found that the groups did not sufficiently support their claim that “irreparable harm” would be done to the plaintiffs in the case if the policy were not blocked. While the rule would affect migrants seeking asylum, the judge said, “the plaintiffs before me here are not asylum seekers.”
That case resulted in an unusual public disagreement between Mr. Trump and Chief Justice John Roberts after Mr. Trump called the liberal-leaning Ninth Circuit a “disgrace” and labeled Judge Tigar an “Obama judge.” Like the earlier rule, the latest rule was intended to deter Central Americans from heading to the United States. “They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he added.
But the government has found other ways to curb the entry of migrants. At ports of entry, Customs and Border Protection agents have significantly slowed the processing of applicants by way of a system called metering, limiting how many migrants are processed in a day to as few as a dozen. In recent years, the number of migrants petitioning for asylum has skyrocketed.
In addition, the courts have allowed the Department of Homeland Security to begin ordering asylum seekers to wait in Mexico until the day of their court hearing, undermining their chances of winning asylum by making it more difficult for them to secure a lawyer to represent them in the United States. Some 16,000 migrants are now waiting in Mexican border towns like Tijuana under the program, which is officially known as Migration Protection Protocols but is more commonly referred to as “Remain in Mexico.” Migrant families and unaccompanied children have been turning themselves in to Border Patrol agents and then requesting asylum, which typically enables them to remain in the United States for years as their cases wind through the backlogged immigration courts. Only about 20 percent of them ultimately win asylum, according to the government, and many of those whose applications are rejected remain in the country unlawfully.
So far, the administration’s efforts have largely failed to halt the wave of migrants. In May, more than 144,000 crossed the border, mainly from Central America. There was a 28 percent drop in June, the first decline of the year, which may have been partly a result of the normal slowing of migration in the dangerous summer heat. The administration announced the new asylum policy despite the fact that Guatemala and Mexico had not agreed to the plan, which means those countries have made no assurances that they would grant asylum to migrants intending to go to the United States. Talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting that had been scheduled for July 15 at the White House. On Wednesday, President Trump said that his administration was considering imposing tariffs on Guatemalan exports or taxing money sent home by migrants.
The new asylum rule is just one of many efforts by the Trump administration to curb the entry of migrants.
At ports of entry, Customs and Border Protection agents have significantly slowed the processing of applicants through metering — limiting how many migrants are processed to as few as a dozen per day.
And some 16,000 migrants are waiting in Mexican border towns like Tijuana under a policy commonly referred to as “Remain in Mexico,” which forces asylum seekers to wait in Mexico until the day of their court hearing. The policy makes it more difficult for the migrants to secure a lawyer to represent them in the United States, undermining their chances of winning protections.
In November, President Trump unveiled a separate policy that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Judge Tigar, who was also hearing that case, issued a temporary restraining order blocking that rule. The case is currently on appeal in the Ninth Circuit.