Bid to reinstate ban on asylum rejected
A divided federal appeals court, in a ruling by one of its most conservative judges late Friday, rejected President Trump’s attempt to reinstate a ban on political asylum for thousands of undocumented immigrants who enter the U.S. at the Mexican border.
Trump issued orders Nov. 9 barring asylum for anyone crossing the border illegally in any place other than a port of entry, a limited number of designated areas where immigrants currently face waits of several months to check in and apply for asylum. He said the change was needed to discourage unlawful crossings by members of the caravan of migrants from Central America.
U.S. District Judge Jon Tigar of San Francisco issued a nationwide monthlong restraining order on Nov. 19 halting enforcement of Trump’s directive. Tigar said the edict squarely contradicted a 1996 federal law that allowed immigrants who have reached the United States to apply for asylum, no matter where they entered. He has scheduled a hearing Dec. 19 on whether to issue a longer-lasting preliminary injunction against the ban.
On Friday, the Ninth U.S. Circuit Court of Appeals in San Francisco agreed with Tigar and left his restraining order in place.
“We are acutely aware of the crisis in the enforcement of our immigration laws,” Judge Jay Bybee said in the 2-1 ruling. But “revision of the laws is left with the branch that enacted the laws in the first place — Congress.”
“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” Bybee said.
Bybee was appointed by President George W. Bush in 2003 and regularly dissents from rulings by the court’s liberal majority. He was joined Friday by Judge Andrew Hurwitz, appointed by President Barack Obama.
In dissent, Judge Edward Leavy said that the Trump administration “adopted legal methods to cope with the current problems rampant at the southern border.” Leavy, an appointee of President Ronald Reagan, said he agreed with the administration’s argument that the 1996 law only allowed immigrants to apply for asylum regardless of where they entered, and did not limit the government’s power of “denying any possibility of being granted asylum.”
Bybee, in response, said giving the government free rein to deny applications that Congress had expressly authorized would make asylum “the hollowest of rights.”
Asylum allows an immigrant to remain in the country, obtain a work permit and eventually apply for citizenship. Authorized by treaties the U.S. has signed, it is granted to foreigners who can show a “well-founded fear of persecution” in their homeland for reasons such as race, religion, political views, and, under recent rulings, sexual orientation.
The ruling came in a lawsuit by the American Civil Liberties Union on behalf of asylum support groups, including East Bay Sanctuary Covenant in Berkeley. ACLU attorney Lee Gelernt said the court’s action was “consistent with the decision Congress has made and will save lives.”
The Trump administration can appeal the ruling to the U.S. Supreme Court. Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko