Federal judge in California halts Trump’s latest asylum ban

Texas Tribune News

Asylum seekers from Central and South America wait on the Mexican side of the Brownsville/Gateway Bridge.
Asylum seekers from Central and South America wait on the Mexican side of the Brownsville/Gateway Bridge.
Reynaldo Leal for The Texas Tribune

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 violated federal law by categorically denying asylum to almost anyone crossing the border.

Tigar issued a preliminary injunction blocking the July 16 policy and ordered the government to restore the existing system. Federal law generally allows anyone who sets foot on U.S. soil to apply for asylum.

“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, in U.S. District Court for the Northern District of California, wrote in his 45-page ruling. 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.”

The American Civil Liberties Union, which argued the case in court on behalf of several nonprofits, cheered the ruling.

“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,” 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.

President Trump immediately hailed the D.C. decision as a victory, telling reporters outside the White House that the decision “helps us very much at the border.”

“So the asylum is a very big ruling. That was a tremendous ruling today,” Trump said. “We appreciate it. We respect the courts very much.”

Hours later, Tigar enjoined the latest version of Trump’s asylum ban and criticized the administration for ignoring federal law. Migrants who reach American soil can apply for asylum, unless they are already firmly settled in a third country, or unless the United States has signed an agreement with another country — known as a “safe third country” agreement — to take them in. Only one such accord exists, with Canada.

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 said 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 discard laws passed by 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,” he wrote. “But shortcutting the law, or weakening the boundary between Congress and the Executive, are not the solutions to these problems.”

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.

Federal officials said the goal is to curb the crush of migrant families at the southern border and to deter migrants from traveling with children and filing meritless asylum claims designed to win quick release in the United States.

Gelernt said during the hearing Wednesday in San Francisco that Trump’s new policy is a clear violation of federal law and would virtually “eliminate asylum at the southern border.”

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 been the forum for most of the major immigration legal challenges against the Trump administration.

The Justice Department did not immediately comment on the ruling Wednesday.

Justice Department lawyer Scott Stewart said during Wednesday’s hearing in Tigar’s courtroom that the asylum policy is part of an array of initiatives that are starting to slow the influx of migrant families at the U.S.-Mexico border and are “important in negotiations” with Mexico and other countries to “share the burdens” of mass migration.

Mexico intensified immigration enforcement in June after the White House threatened to hit the country with export tariffs. The deal also allowed DHS to expand its Migrant Protection Protocols program, which has sent thousands of migrants to Mexico to await their immigration court dates in the United States. Border apprehensions slumped in June and July — typically slower months because of the intense heat — but it is unclear whether the drop is sustainable in the longer term.

“Pressure on Mexico works,” Stewart said. “It’s not always an ‘ask nicely and hope somebody helps you out.’ ”

Mark Morgan, the acting head of Customs and Border Protection, told NPR last week that the new asylum rule is part of a pilot program at a small number of Border Patrol stations in Texas along the Rio Grande Valley and that officials expected it would be enjoined in court.

In November, Tigar struck down a Trump administration policy that barred immigrants from seeking asylum if they crossed the border illegally. He said the policy violated federal law allowing foreigners to request safe haven once they step on U.S. soil, and he warned that denying them access to the system exposed adults and children to violence.

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

In court Wednesday, Stewart noted that Kelly, the federal judge in Washington, had just rejected a similar request to halt the new asylum policy.

The nonprofits in the cases, 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.

Kelly ruled that the groups had failed to show how many of their clients would be affected by the change, saying that “there is just nothing in the record to suggest how many individuals, if any, fall into that category.”

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

Tigar referenced reports outlining severe conditions in Mexico — where migrants have been kidnapped, raped and murdered — and Guatemala, saying they were “stunning.”

“There’s some pretty tough stuff in there,” he told the Justice Department.

Gelernt accused the Trump administration of instituting the rule because it had failed to persuade Mexico and Guatemala to sign “safe third country” agreements, which would make it much easier for the United States to reject asylum seekers at the border because they would be required to seek safe haven in the other countries first.

Trump has attempted to pressure Guatemala into signing a “safe third country” agreement and on Tuesday threatened to impose tariffs, remittance fees and other retaliation if it does not. The day before President Jimmy Morales was expected to meet Trump and sign a “safe third country” agreement, Guatemala’s Constitutional Court said the accord would require approval from the country’s Congress.

The White House has contended that migrants are surging to the southern border with children and filing asylum claims to ease their paths to quick release. Asylum filings have nearly quadrupled in the past five years; fewer than 20 percent of Central American applicants prevail in immigration court.

Justice Department officials said in court filings that they have apprehended “an astonishing” 524,446 non-Mexican border crossers during the first eight months of this fiscal year, nearly double the prior two years combined.

Colby Itkowitz contributed to this report.