By Kevin Daley
A federal judge in California issued a temporary restraining order (TRO) against the Trump administration’s new asylum rules early Tuesday morning.
U.S. District Court Judge Jon Tigar said that Congress extended asylum eligibility to all comers, and the president may not impose contrary terms.
“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar’s decision reads. Tigar is an Obama appointee to the federal trial court in San Francisco.
President Donald Trump issued an order on Nov. 9 denying asylum for all foreign nationals who enter the country illegally for a 90-day period. The ACLU challenged the proclamation in court, arguing it violates the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).
Federal law provides that “any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance” with applicable statutes.
That language is consistent with treaty obligations under the 1967 U.N. Protocol Relating to the Status of Refugees, to which the U.S. is a party.
Taken together, Tigar said that the refugee treaty and the plain language of the law indicate that Congress never meant to deny asylum claims from illegal aliens.
“Considering the text and structure of the statute, as well as the interpretive guide of the U.N. Protocol, reveals Congress’s unambiguous intent,” Tigar wrote. “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 decision may be appealed to the 9th U.S. Circuit Court of Appeals.
The Trump administration argued that illegal aliens may retain the right to apply for asylum, but the government may use their unlawful entry as the basis for denying the request. Tigar acknowledged that the manner of arrival may play some role in assessing asylum pleas, but added that the administration’s position rendered federal law “a dead letter.”
The government elsewhere argued that many asylum applications are meritless, and pointed to other provisions of the INA that give the president broad power to regulate entry. The U.S. Supreme Court ruled that Trump’s travel ban was a legitimate exercise of presidential power under the INA in June.
“Our asylum system is broken, and it is being abused by tens of thousands of meritless claims every year,” said Katie Waldman, a spokeswoman for the Homeland Security Department. “As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country. Further, asylum is a discretionary benefit given by the Executive Branch only when legal conditions are met and a favorable exercise of discretion is warranted.”
The TRO will remain in effect until Dec. 19. The overnight order followed arguments in the dispute just 12 hours prior.
“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers,” ACLU attorney Lee Gelernt said after Tuesday’s decision. “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.”
The ruling comes as several thousand central American caravan migrants coalesced in Tijuana, Mexico, immediately adjacent to the U.S. border. Homeland security officials shut down the San Ysidro port of entry near San Diego Monday, fearing a border rush was imminent.
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