Federal Judge Blocks Trump Asylum Ban

by Kim Boateng Last updated on November 21st, 2018,

San Francisco, California, USA : Judge Jon S. Tigar of the United States District Court in San Francisco on Monday ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States, dealing at least a temporary setback to the president’s attempt to clamp down on a huge wave of Central Americans crossing the border.

Federal Judge Jon S. Tigar issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.

“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Mr. Tigar wrote in his order.

As a caravan of several thousand people journeyed toward the Southwest border, President Trump signed a proclamation on Nov. 9 that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Only those who entered the country through a port of entry would be eligible, he said, invoking national security powers to protect the integrity of the United States borders.

Within days, the administration submitted a rule to the federal register, letting it go into effect immediately and without the customary period for public comment.

But the rule overhauled longstanding asylum laws that ensure people fleeing persecution can seek safety in the United States, regardless of how they entered the country. Advocacy groups, including the Southern Poverty Law Center and the American Civil Liberties Union, swiftly sued the administration for effectively introducing what they deemed an asylum ban.

After the judge’s ruling on Monday, Lee Gelernt, the A.C.L.U. attorney who argued the case, said, “The court made clear that the administration does not have the power to override Congress and that, absent judicial intervention, real harm will occur.”

“This is a critical step in fighting back against President Trump’s war on asylum seekers,” Melissa Crow, senior supervising attorney for the Southern Poverty Law Center, one of the other organizations that brought the case, said in a statement. “While the new rule purports to facilitate orderly processing of asylum seekers at ports of entry, Customs and Border Protection has a longstanding policy and practice of turning back individuals who do exactly what the rule prescribes. These practices are clearly unlawful and cannot stand.”

There was no immediate comment from the Trump administration.

Presidents have broad discretion on immigration matters. But the court’s ruling shows that such discretion has limits, said Stephen Yale-Loehr, an immigration scholar at Cornell Law School.

“The ruling is a significant blow to the administration’s efforts to unilaterally change asylum law. Ultimately this may have to go to the Supreme Court for a final ruling,” said Mr. Yale-Loehr.

The advocacy groups accused the government of “violating Congress’s clear command that manner of entry cannot constitute a categorical asylum bar” in their complaint. They also said the administration had violated federal guidelines by not allowing public comment on the rule.

But Trump administration officials defended the regulatory change, arguing that the president was responding to a surge in migrants seeking asylum based on frivolous claims, which ultimately lead their cases to be denied by an immigration judge. The migrants then ignore any orders to leave, and remain unlawfully in the country.

”The president has sought to halt this dangerous and illegal practice and regain control of the border,” government lawyers said in court filings.

Mr. Trump, who had made stanching illegal immigration a top priority since his days on the campaign trail, has made no secret of his frustration over the swelling number of migrants heading to the United States. The president ordered more than 5,000 active-duty troops to the border to prevent the migrants from entering.

The new rule was widely regarded as an effort to deter Central Americans, many of whom request asylum once they reach the United States, often without inspection, from making the journey over land from their countries to the border.

United States immigration laws stipulate that foreigners who touch American soil are eligible to apply for asylum. They cannot be deported immediately. They are eligible to have a so-called credible fear interview with an asylum officer, a cursory screening that the overwhelming majority of applicants pass. As result, most of the migrants are released with a date to appear in court.

In recent years, more and more migrants have availed themselves of the asylum process, often after entering the United States illegally. A record 23,121 migrants traveling as families were detained at the border in October. Many of the families turn themselves in to the Border Patrol rather than queue up to request asylum at a port of entry.

The Trump administration believes the migrants are exploiting asylum laws to immigrate illegally to the United States. Soaring arrivals have exacerbated a huge backlog of pending cases in the immigration courts, which recently broke the one-million mark. Many migrants skip their court dates, only to remain illegally in the country, which Mr. Trump derides as “catch and release.”

But advocates argue that many migrants are victims of violence or persecution and are entitled to seek sanctuary. Gangs are ubiquitous across El Salvador, Honduras and Guatemala, where lawlessness and corruption enable them to kill with impunity.

UPDATE : Trump Takes Aim at Appeals Court, Calling It a ‘Disgrace’

President Trump lashed out against the United States Court of Appeals for the Ninth Circuit, based in San Francisco, calling it a lawless disgrace and threatening unspecified retaliation.

“That’s not law,” he said of the court’s rulings. “Every case that gets filed in the Ninth Circuit we get beaten.”

“It’s a disgrace,” Mr. Trump said.

Mr. Trump’s remarks came after a federal trial judge ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.

The ruling was issued by Judge Jon S. Tigar, of the United States District Court in San Francisco, and not by the Ninth Circuit itself, which hears appeals from that court and others in nine western states. The appeals court’s geographic jurisdiction is also sometimes called the Ninth Circuit.

“This was an Obama judge,” Mr. Trump said of Judge Tigar, who was indeed appointed by President Barack Obama.

Mr. Trump, who has suffered losses in courts across the nation, said he was frustrated by the ability of plaintiffs to file challenges to his administration’s policies in the Ninth Circuit.

It is true that plaintiffs who have a choice tend to file their lawsuits in courts they hope will rule in their favor. Plaintiffs challenging the Obama administration’s health care, immigration and other programs often filed their lawsuits in Texas before conservative judges. The State of Texas alone sued the Obama administration at least 48 times, according to a survey conducted by The Texas Tribune.

Mr. Trump said courts in the Ninth Circuit always ruled against his policies. “Everybody that wants to sue the United States, they file their case in the Ninth Circuit, and it means an automatic loss no matter what you do, no matter how good your case is,” he said.

That was an overstatement, though the administration’s track record in the Ninth Circuit has been poor. Just this month, a three-judge panel of the appeals court ruled that Mr. Trump could not rescind the Obama administration’s protections for some 700,000 “Dreamers,” young immigrants who were brought into the United States illegally as children.

Also this month, a federal trial judge in Montana, which is part of the Ninth Circuit, blocked Mr. Trump’s decision to allow construction of the Keystone XL oil pipeline, saying the administration failed to present a “reasoned explanation” for the move and “simply discarded” the effect the project would have on climate change.

Mr. Trump pointed out on Tuesday that the Supreme Court in June had reversed a ruling from the Ninth Circuit blocking his order limiting travel from several predominantly Muslim nations. Mr. Trump vowed to win the asylum case in the Supreme Court, too.

The Ninth Circuit has a reputation for being frequently reversed by the justices, but its reversal rate is only a little higher than average and not as high as that of some other circuits.

Mr. Trump vowed to take steps to address his unhappiness with the court. “I’ll tell you what,” he said, “it’s not going to happen like this anymore.” But it was not clear what he proposed to do.

“The Ninth Circuit is really something we have to take a look at because it’s not fair,” he said. “People should not be allowed to immediately run to this very friendly circuit and file their case.”

Limiting the court’s jurisdiction would require legislation and could raise constitutional issues. But there are other ways Mr. Trump could address his misgivings about the court.

The most obvious is to change its composition of 16 Democratic appointees and seven Republican ones. Mr. Trump has already appointed two judges to the court, and he has six more vacancies to fill. Once he does, the court, which is authorized to have 29 active judges, will be nearly evenly divided between Democratic and Republican appointees.

The court’s decisions affect a fifth of the nation’s population and a third of its land, in nine states and two territories. There have been periodic calls to split it into two or perhaps three smaller circuits.

But it is not clear that such a move would assuage Mr. Trump’s concerns. If plaintiffs challenging his administration’s policies remained free to file where they wished, they might continue to pick a federal court in San Francisco.

Chief Justice John Roberts Pushes Back Against Trump Over ‘Obama Judge’ Comment

Chief Justice John Roberts pushed back against President Donald Trump’s criticisms of the federal judiciary, issuing a rare public statement  after Trump decried an “Obama judge” who blocked an administration effort to curb asylum claims.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement released by the Supreme Court.

“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” he added. “That independent judiciary is something we should all be thankful for.”

The comments are Roberts’s most direct rebuttal yet to Trump’s attacks on the federal judges who have ruled against him. Although Roberts has defended the judiciary in the past, his statement Wednesday is the first time he’s directly responded to comments made by Trump.

U.S. District Judge Jon Tigar on Monday temporarily barred the administration from requiring all asylum applications to be made at official ports of entry.

Trump blasted the ruling, calling Tigar, nominated by President Barack Obama in 2013, an “Obama judge.” The president also described as a “disgrace” the San Francisco-based 9th U.S. Circuit Court of Appeals, which would handle any appeal of the asylum ruling.

“You go to the 9th Circuit and it’s a disgrace, and I’m going to put in a major complaint,” Trump said. “Every case that gets filed in the 9th Circuit, we get beaten and then we end up having to go to the Supreme Court, like the travel ban, and we won.”

Roberts, appointed by Republican President George W. Bush, is likely to hold the court’s most important vote in the coming years. Roberts is a conservative on high-profile issues including abortion and affirmative action. But he has proven less interested in overturning precedents — and more interested in forging consensus rulings — than some of his fellow Republican appointees.

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Kim Boateng

Kim Boateng

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