Advocates ask judge for nationwide policy on asylum
Immigrant advocates implored a federal judge in San Francisco on Monday to restore his nationwide order allowing migrants fleeing Central America to seek asylum in the United States, days after an appeals court let the Trump administration enforce a ban on virtually all such applicants in much of the United States.
The administration’s policy, which took effect July 16, barred asylum for anyone who had passed through another country on the way to the United States without first seeking asylum there. Exempting only victims of human trafficking, the new rules effectively excluded applicants from El Salvador, Honduras and Guatemala, nations with some of the world’s highest homicide rates.
U.S. District Judge Jon Tigar blocked the policy on July 24, saying U.S. immigration law allows immigrants to apply for asylum regardless of the route they traveled, unless they first entered a country that is shown to be a safe haven for refugees.
On Friday, the Ninth U.S. Circuit Court of Appeals in San Francisco refused to immediately reinstate the policy while the case proceeds, say
ing the administration had not shown it was likely to win its case. But in a 21 ruling, the court said Tigar had not shown the need for a nationwide injunction, and narrowed the scope of his ruling to the states within the Ninth Circuit.
The circuit’s nine states include the border states of California and Arizona, but not Texas or New Mexico, entry sites for large numbers of undocumented Central Americans. But the ruling’s impact may be even broader because, as lawyers for immigrant support groups noted Monday, asylum cases are often transferred from one state to another, at the request of either the immigrant or the government.
In 2017, the lawyers said, immigration judges transferred more than 115,000 cases between courts before hearings on whether an immigrant should be deported. And because only 19 of the government’s 132 detention centers for migrants are within the Ninth Circuit, it’s quite possible that someone who applied for asylum in California will have the case heard in another part of the country.
That raises the question of which law to apply — the law of the Ninth Circuit, which allows the cases to be considered, or the law where the migrant was transferred, which in most cases would require deportation.
When that issue arises in other asylum cases, “typically the law that governs is the law of the place where the ‘credible fear’ interview happens,” said Stanford law Professor Jayashri Srikantiah. She was referring to the firststage hearing where an immigration judge decides whether a migrant has a “credible fear” of being targeted for persecution if deported, a hearing that might take place far from the site of entry.
“The whole thing is set up for confusion,” said another immigration law professor, Bill Hing of the University of San Francisco. He said he assumes someone who crosses from Mexico to California would be covered by the law in the Ninth Circuit regardless of where the case is heard, “but I don’t know if I’m right.”
Clearing up any such confusion was one reason immigrant advocates offered Monday in urging Tigar to consider additional evidence and reinstate a nationwide injunction against the Trump administration rules — an option the appeals court had expressly allowed in Friday’s ruling.
“It is not possible to predict asylumseekers’ movements in advance,” said attorneys from the American Civil Liberties Union and the Southern Poverty Law Center. Saying the current patchwork system will drive up costs and increase hardships for the immigrantsupport groups they represent, they asked the judge to hear additional evidence and swiftly restore a uniform ban on the policy while the case continues.
The plaintiffs’ lawyers called for a lightningfast schedule, with written arguments this week and a hearing on Friday. After Justice Department lawyers responded that such issues can take months to consider properly, Tigar ordered filings over the next two weeks and scheduled a hearing Sept. 5.