Judge blocks proposed ‘death to asylum’ rule before it takes effect

The Trump administration’s final attempt to restrict U.S. asylum laws aimed at immigrants fleeing from oppression — coined “death to asylum” by its opponents — was blocked by a federal judge before it was to go into effect Monday.

U.S. District Judge James Donato in San Francisco on Friday agreed with immigrant-rights lawyers that acting Homeland Security Secretary Chad Wolf lacked authority to promulgate the rule, which would make it difficult if not impossible to qualify for asylum. It will be up to the incoming Biden administration to decide whether to appeal Donato’s preliminary injunction.

“The new administration could in theory accept the court’s ruling, stop defending the lawsuit, and agree to withdraw the rule on the basis of there never having been any authority to promulgate it in the first instance,” said Niels Frenzen, an immigration law professor at the University of Southern California.

The final rule, officially called Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, was published Dec. 11 and was a last-ditch attempt in the administration’s four-year effort to curb refugees from Central America seeking asylum in the U.S. Immigrantrights groups sued to prevent it from being implemented because, they said, it would “gut the asylum system.”

The rule, for example, would deny asylum to an applicant who has already proven eligible if, absent extraordinary circumstance, she failed to file a tax return, spent more than 14 days in any one country while en route to the U.S., or was unlawfully in the U.S. for more than a year cumulatively, according to the Dec. 21 complaint by Pangea Legal Services and other groups.

“Death to asylum is not an exaggeration,” Frenzen said. The scope of this rule “would bar many, perhaps most claims from Central America, which is the intent.”

Representatives of the Justice Department didn’t immediately respond to a request for comment on the ruling after regular business hours.