Immigration attorney Jodi Goodwin, center, talks to Nicaraguan asylum seekers while they wait for Customs and Border Protection agents to bring a wheelchair for one of them, on the U.S. side of the international bridge in Hidalgo on Sept. 15, 2018. Verónica G. Cárdenas for The Texas Tribune
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 Donald Trump’s action was announced on Nov. 9, though the White House had as early as last month floated drastic 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 so-called sanctuary cities and to rescind the Deferred Action for Childhood Arrivals 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.”
“To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter,” he argued. “There simply is no reasonable way to harmonize the two.”
The judge pointedly denied the claim that the president, by fiat, could give the manner of entry added legal weight as a determinant of asylum. He reasoned that the “interpretive guide” of United Nations compacts on asylum lent extra force to congressional requirements. The intent of Congress, Tigar wrote, was “unambiguous.”
“And if what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” the judge found.
Lee Gelernt, the ACLU attorney who argued the case, welcomed the ruling in a news release.
“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers,” he said. “There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades.”
Elise Ackerman contributed to this report from San Francisco.
Authors: ISAAC STANLEY-BECKER AND MARIA SACCHETTI, THE WASHINGTON POST