Congress

Trump’s new asylum rule left dead in the water after court decisions

The Supreme Court may ultimately have to decide the issue

People gather for a protest on President Trump’s immigration policy outside of the U.S. Customs and Border Protection office in Washington on July 12, 2019. Two contradictory federal court decisions have disrupted President Donald Trump’s latest attempt to tighten asylum laws. (Caroline Brehman/CQ Roll Call)

Two contradictory federal court decisions, both on the same day, have disrupted President Donald Trump’s latest attempt to tighten asylum laws, and the Supreme Court may ultimately have to decide the issue.

A federal judge in California late Wednesday temporarily blocked the Trump administration’s new rule that requires asylum seekers transiting a third country to request protections there first before applying for asylum in the United States.

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U.S. District Judge Jon Tigar in San Francisco issued the preliminary nationwide injunction blocking the asylum restrictions, which were announced by the Trump administration earlier this month.

Tigar wrote that the new rule is “likely invalid because it is inconsistent with the existing asylum laws.”

Tigar’s ruling came just hours after a different federal judge in the District of Columbia ruled that the Trump administration could continue to implement the new rule.

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But the California judge’s nationwide injunction takes precedence and stops for now the rules from going into effect.

Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia earlier on Wednesday had decided against D.C. plaintiffs who were also seeking to block the new asylum rule.

“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,” Kelly said.

Kelly’s ruling came in a case brought by the Capital Area Immigrants’ Rights Coalition and RAICES (Refugee and Immigrant Center for Education and Legal Services), two immigration advocacy groups.

The White House issued a strong statement Thursday morning denouncing the California judge’s decision.

“The tyranny of a dysfunctional system that permits plaintiffs to forum shop in order to find a single district judge who will purport to dictate immigration policy to the entire Nation — even in the face of a contrary ruling by another Federal court — must come to an end,” said the White House statement. “We intend to pursue all available options to address this meritless ruling and to defend this Nation’s borders.″

White House Press Secretary Stephanie Grisham earlier in the day had declared victory after Kelly’s ruling.

The California judge’s ruling could be overturned by the U.S. Court of Appeals for the 9th Circuit, but that is unlikely because that court has generally been friendly to asylum seekers.

The California lawsuit was brought by the American Civil Liberties Union, the Southern Poverty Law Center, and the Center for Constitutional Rights.

Baher Azmy, the Center for Constitutional Rights’ legal director, said: “The court correctly decided that decades of U.S. asylum law prevent this administration from attempting to deny wholesale, asylum protections through this arbitrary and hasty regulation. This application of the law will also save lives of vulnerable refugees fleeing for their lives and safety.”

Aaron Reichlin-Melnick, a policy analyst with the American Immigration Council, said if history is a guide, Trump’s asylum changes may be doomed: “Until the 9th Circuit or the Supreme Court reverse Judge Tigar’s preliminary injunction, the Trump administration’s attempt to gut asylum protections while doing an end-run around Congress has been stopped.”

Reichlin-Melnick noted that last year the Supreme Court rejected the Trump administration’s request to set aside a unanimous 9th Circuit decision blocking Trump’s first asylum ban. “It remains to be seen whether that will happen again,” he said.

The asylum rule is one of many policies the Trump administration has introduced in recent months to slow the record number of migrants, particularly families, arriving at the southern border largely from El Salvador, Guatemala and Honduras this year.

Earlier this week the Trump administration announced another rule change to expand the number of undocumented immigrants detained in the United States who can be put into “expedited removal” proceedings, or fast deportations.

Democrats have assailed the new guidelines on expedited removals.

“This is just another example of how anti-immigrant this administration is, and they’re doing everything they can to make life just as totally miserable as possible to somehow prevent people from escaping terrible situations in their home [countries],” Sen. Mazie K. Hirono, a Hawaii Democrat, said Tuesday.

In the past, immigration officials could only deport an individual without going before an immigration judge if the individual was apprehended within two weeks of entering and within 100 miles of the Canadian or Mexican border. Now if undocumented immigrants cannot prove that they have been in the U.S. continuously for at least two years they will be subject to immediate removal without access to court.

Many advocacy groups fear that the new rule will make thousands of more immigrants across the country vulnerable to deportations and could lead to more family separations.

“His dramatic expansion of fast-track deportations gives immigration officials unchecked authority to apprehend and order deported anyone anywhere in the United States who cannot swiftly prove they have lawful status or have been in the country for two years or more,” said Royce Bernstein Murray, managing director of programs at the American Immigration Council. “This type of summary removal prevents people from getting a fair day in court or access to an attorney, increasing the risk of deporting vulnerable individuals to serious harm or death.”

Republicans, however, are defending the Trump administration, saying that Congress’ inability to pass legislation to fix certain “loopholes” in asylum laws has forced Trump to use his executive authority to issue new regulations and guidelines to crack down on illegal immigration.

“It seems like ... we’re kind of stuck on passing the additional legislation. So now everybody’s exploring what authorities already exist and making sure we maximize the use of the authorities that already exist,” Sen. John Cornyn said.

The Texas Republican continued: “I mean, the humanitarian crisis isn’t going to end unless Congress acts. This is just really a small step, but I don’t think it eliminates any sense of urgency.”

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