Federal court enjoins Trump administration’s unilateral safe third-country asylum ban

Protestors hold signs that read " Asylum is a Right" outside of the San Francisco Federal Courthouse on Wednesday, July 24, 2019 in San Francisco, Calif. A federal judge said Wednesday that the Trump administration can enforce its new restrictions on asylum for people crossing the U.S.-Mexico border while lawsuits challenging the policy play out. (AP Photo/Haven Daley)

This how “The Enemy of The People,” Mitch McConnell’s court packing scheme is intended to politicize the judiciary with extremist right-wing judges who will endorse whatever illegal act “Dear Leader” does.

The Trump administration unilaterally announced a new asylum policy on July 16 that would effectively ban asylum for anyone from Central America, in defiance of international and U.S. law.

U.S. District Judge Timothy J. Kelly, a Trump appointee, upheld the administration’s latest restriction on asylum requests by migrants fleeing violence in their home countries, which was challenged on July 16 in a lawsuit brought by several migrant advocacy groups. Federal Judge Rules in Favor of Trump’s New Policy Banning Most Asylum-Seekers:

Under the new rule, asylum-seekers who pass through another country on their way to the U.S. will be denied entry here, unless they were already rejected for asylum in that third country.

The rule is plainly illegal. Trump’s “Apply in Guatemala or Mexico” Refugee Policy is Illegal and Cruel:

Federal statutory law implements the treaty obligations of the United States by granting asylum seekers categorical permission to apply, regardless of how or where they entered the country. The key provision states that “any” noncitizen, “who is physically present in the United States (whether or not at a designated port of arrival…)”, may apply for asylum.

To be sure, the same statute also provides that migrants may be denied the opportunity to seek asylum in the U.S. based on having traversed other countries where they did not apply for asylum “pursuant to a bilateral or multilateral” safe third country agreement. However, the U.S. does not have a safe third country agreement with Guatemala, nor, for that matter, with Mexico.

* * *

Judges and lawyers sometimes exaggerate when they say that the plain language of a statute requires a result, but here it really is that simple. The new Trump rule is obviously illegal.

It constitutes the most severe step taken by the Trump administration thus far to curtail asylum requests. It’s going to disproportionately impact people from Central American countries like El Salvador and Honduras—the majority of those seeking asylum on the southern U.S. border—as they have all passed through at least one other country, Mexico, on their way to the United States.

* * *

The two nonprofits challenging the rule in court—the Capital Area Immigrants’ Rights Coalition and the Refugee and Immigrant Center for Education and Legal Services—argued that it violated the Immigration and Naturalization Act as well as the Administrative Procedure Act. The plaintiffs said that these acts stipulate that once asylum-seekers reach the U.S., they are allowed to apply for refuge.

Kelly, who was appointed by Trump, said that “I’m not sure it would cause no irreparable harm” to migrants if this rule was implemented. Still, he maintained that he ruled in favor of the policy because the immigrants’ rights groups could not quantify how many asylum-seekers would be turned away and how many would be accepted into the country as a result.

This is beside the point. International and federal law does not permit a safe third-country asylum ban where there is no bilateral or multilateral” safe third country agreement between the U.S. and a third country. Judge Kelly disregarded the law to support the president who appointed him to the bench. This is corruption of the justice system.

Just hours later, however, a Federal judge in California halted Trump’s latest asylum ban:

A federal judge in San Francisco temporarily blocked a new Trump administration policy Wednesday that sought to bar Central Americans and other migrants from requesting asylum at the southern border, saying the federal government’s frustrations with rising border crossings did not justify “shortcutting the law.”

The policy aimed to curtail Central American migration across the southern border by requiring asylum seekers to apply in countries they had passed through on the way to the United States, particularly Mexico or Guatemala.

U.S. District Judge Jon S. Tigar, who halted another version of the Trump administration’s asylum ban last year, said a “mountain” of evidence showed that migrants could not safely seek asylum in Mexico. He said the rule likely violated federal law in part by categorically denying asylum to almost anyone crossing the border. U.S. law generally allows anyone who sets foot on U.S. soil to apply for asylum.

Tigar issued a preliminary injunction blocking the July 16 policy and ordered the government to restore the existing system. He wrote that the “government rightly notes that the strains on this country’s immigration system have only increased since the fall of 2018,” but he said that did not authorize them to bypass Congress.

“The public undoubtedly has a pressing interest in fairly and promptly addressing both the harms to asylum applicants and the administrative burdens imposed by the influx of persons seeking asylum,” Tigar, an Obama administration appointee in the U.S. District Court for the Northern District of California, wrote in his 45-page ruling. “But shortcutting the law, or weakening the boundary between Congress and the Executive, are not the solutions to these problems.”

The American Civil Liberties Union, which argued the case in court on behalf of several nonprofits, cheered the ruling and said the Trump administration’s policy would have effectively ended asylum at the southern border.

“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,” ACLU lawyer Lee Gelernt said in a statement.

Tigar’s ruling followed an hour-long hearing Wednesday in San Francisco and a short-lived legal victory for the Trump administration over the same policy, in a different lawsuit in Washington.

U.S. District Judge Timothy J. Kelly, a Trump appointee, declined to halt the policy, setting up a potential race to federal appellate courts over one of the administration’s key migration initiatives.

Neither judge ruled on the merits of the cases, and the Justice Department is expected to appeal Tigar’s ruling.

A Trump “Injustice Department” spokesman said in response to the ruling that Congress granted the attorney general and the Department of Homeland Security broad authority to bar “certain categories” of asylum seekers.

“The district court was wrong to conclude otherwise, to second-guess the agencies’ expert policy judgment, and to halt this critical measure on a nationwide basis — particularly on the very same day that another district judge, faced with a legal challenge to this rule by virtually indistinguishable organizations, refused to issue such nationwide injunction relief,” the statement said.

It is the Trump “Injustice Department” who is wrong on the law.

Tigar wrote that the Trump administration failed to show that forcing asylum seekers to apply in Mexico is a “feasible alternative” and said during the hearing that government lawyers did not provide a “scintilla” of evidence to suggest that Guatemala could absorb them, either.

Instead, he wrote, human rights organizations documented “in exhaustive detail” how asylum seekers in Mexico are subjected to violence and abuse from government officials and others, denied their rights, and even “wrongly returned” to nations they fled. The United Nations High Commissioner for Refugees said Mexico has “strong obstacles” to applying for asylum, including the lack of proper screening procedures and other measures.

“Yet, even though this mountain of evidence points one way, the agencies went the other — with no explanation,” Tigar said of the rule, published by the Justice Department and the Department of Homeland Security.

Tigar noted that his ruling simply restores the asylum system to the one Congress authorized in federal law.

“While the public has a weighty interest in the efficient administration of the immigration laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat,” Tigar wrote.

He said the injunction “would vindicate the public’s interest — which our existing immigration laws clearly articulate — in ensuring that we do not deliver aliens into the hands of their persecutors.”

Plaintiffs in both cases — nonprofits serving immigrants — filed the legal challenges hours after the Justice Department and Department of Homeland Security published a rule July 16 barring most migrants from filing asylum claims if they traveled through Mexico or another country where they could have sought refuge.

* * *

The Southern Poverty Law Center, the Center for Constitutional Rights and others joined the ACLU in seeking the injunction in the U.S. District Court for the Northern District of California. The court falls under the U.S. Court of Appeals for the 9th Circuit, which has considered most of the major immigration legal challenges against the Trump administration.

* * *

In November, Tigar struck down a Trump administration policy that barred immigrants from seeking asylum if they crossed the border illegally, saying the policy violated federal law.

The U.S. Court of Appeals for the 9th Circuit later upheld Tigar’s decision.

In court Wednesday, the Justice Department lawyer noted that Kelly, the federal judge in Washington, had just rejected a similar request to halt the new asylum policy. The nonprofits in that case, the Capital Area Immigrants’ Rights Coalition of Washington and the Texas-based Refugee and Immigrant Center for Education and Legal Services, had argued that they would suffer harm by serving fewer migrants.

But Tigar said each judge must render his or her own decision: “We have the appellate courts to sort this out for us.”

So these cases will now go to the courts of appeal on the issue of the nationwide injunction approved by Judge Tigar. The cases will then still have to be tried on the merits, and there will of course be an appeal of any decision, probably the latter part of next year. An appellate court decision on the merits would not make it the U.S. Supreme Court, assuming that it grants certiorari, until its 2020-2021 term.