Trump’s ban on asylum hits barrier in S.F. court
President Trump’s latest attempt to build the legal equivalent of a wall at the Mexican border — a ban on political asylum for most of the thousands of immigrants fleeing their homelands in Central America — has run into a barrier in San Francisco federal court, where a judge said the president’s order conflicts with decades-old federal law.
Rules announced by Trump in a proclamation Nov. 9, and put into effect by his administration the next day, barred U.S. asylum for undocumented immigrants crossing the Mexican border unless they crossed at designated ports of entry — a limited number of official sites, now heavily backlogged with waiting times of six weeks or longer. The president said he was responding to a looming crisis at the border, with a caravan of thousands of
Central Americans proceeding northward from Mexico.
But U.S. District Judge Jon Tigar, in a ruling Monday night, said the ban flies in the face of long-standing U.S. law. Passed in its current form in 1996, the law says any foreigner “who is physically present in the United States (whether or not at a designated port of entry) ... may apply for asylum.”
The Trump administration’s action “irreconcilably conflicts with (the federal law) and the expressed intent of Congress,” Tigar said in issuing a nationwide restraining order halting enforcement of the ban. “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a restriction that Congress has expressly forbidden.”
He ruled in a suit filed by the American Civil Liberties Union on behalf of asylum support groups, led by East Bay Sanctuary Covenant in Berkeley.
Asylum allows undocumented immigrants to remain in the country legally, hold work permits and apply for citizenship, if they can show a “well-founded fear of persecution” in their homeland for reasons such as race, religion, political views, or, under recent rulings, sexual orientation. Immigration court rulings that allowed victims of domestic violence and gang violence in their home country to seek asylum were overturned in June by then-Attorney General Jeff Sessions, and on Monday a federal judge in Washington, D.C., heard arguments in an ACLU suit challenging Sessions’ decision.
The Nov. 9 asylum ban was the most recent attempt by Trump to choke off immigration at the southern border, where he has sought congressional funding to build his long-promised “beautiful wall.” He has also sent more than 5,000 U.S. troops to the border to confront the caravan when it arrives.
Tigar’s restraining order blocks the ban until Dec. 19, when he said he would consider a preliminary injunction that would remain in effect indefinitely. Restraining orders generally cannot be appealed, and the Justice Department said only that it would continue to “defend the executive branch’s legitimate and well-reasoned exercise of its authority to address the crisis at our southern border.”
Trump’s press secretary, Sarah Huckabee Sanders, responded indignantly.
“This decision will open the floodgates, inviting countless illegal aliens to pour into our country on the American taxpayer’s dime,” she said in a statement. “This temporary injunction is yet another example of activist judges imposing their open borders policy preferences.”
But ACLU attorney Lee Gelernt said it was the Trump administration that was putting people at risk and flouting the law.
“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers,” he said. “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.”
In a joint statement criticizing Tigar’s decision, the Justice Department and Homeland Security Department cited the Supreme Court’s ruling in June that upheld Trump’s ban on U.S. entry from a group of predominantly Muslim nations based on the president’s legal authority to exclude groups of foreigners he considers harmful to the national interest.
“Congress has given the president broad authority to limit or even stop the entry of aliens into this country,” the statement said. “And it is absurd that a set of advocacy groups can be found to have standing to sue to stop the entire federal government from acting so that illegal aliens can receive a government benefits to which they are not entitled.”
But Tigar said the advocacy groups were entitled to represent the interest of asylum-seekers, who are regularly being turned away from ports of entry by U.S. officers. The hardships of those waiting periods, he said, are “compounded by the dangerous conditions in border towns.” And he rejected the Justice Department’s central argument for the asylum ban: that the 1996 law only allows immigrants to apply for asylum regardless of where they entered the United States, and doesn’t actually make them eligible for asylum.
“To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter,” Tigar said. He said the Justice Department’s interpretation would make the law “largely meaningless.”
The department also argued that the ban would not harm immigrants who legitimately feared violence in their homeland, because they could still avoid deportation if they could prove, under separate laws, that they would face persecution or torture. But Tigar said those laws set a more demanding standard than asylum, which requires only a “wellfounded fear of persecution” and is part of the nation’s obligations under international treaties.
Immigrants who otherwise would have qualified for asylum “will be forced to return to the site of their persecution,” the judge said. He also said the administration may have acted illegally by putting its rules into effect immediately rather than waiting up to 90 days to receive comment from the public.
The Tahirih Justice Center, which gives legal aid to women and girls seeking refuge in the U.S., applauded the ruling.
When “there are people right now approaching the U.S. fleeing real violence and with legitimate asylum claims,” said the organization’s chief of policy, Archi Pyati, “we are relieved that the legal process of seeking asylum will once again be a possible pathway for them to find safety.”