Appeals court in S.F. rejects bid by Trump to cut asylum seekers
The Trump administration’s neartotal ban on asylum seekers at the Mexican border, requiring applicants to first seek refuge in another country, violates U.S. immigration law and endangers thousands of migrants from Central America, a federal appeals court ruled Monday.
The restriction, announced a year ago, prohibited Central Americans and others at the Mexican border from applying for U.S. asylum unless they have unsuccessfully sought asylum in a country they had passed through. That required them to apply in Mexico, and, for those from El Salvador or Honduras, to apply in Guatemala as well.
Although the Trump administration says it has negotiated “safe third country” agreements with all three Central American countries, reports cited by immigrant advocates say none of those countries has a functioning asylum system, nor does Mexico. The effect of the administration’s rule was to bar Central Americans from even applying for asylum in the United States unless they arrive directly by boat or plane.
The evidence shows that “those seeking asylum in Mexico are subject to violence and abuse from third parties and government officials, denied their rights under Mexican and international law, and wrongly returned to countries from which they fled persecution,” said the Ninth U.S. Circuit Court of Appeals in San Francisco.
The court said a 2017 study by Doctors Without Borders, cited in the Trump administration’s legal filings, found that 68.3% of asylum seekers from the three Central American nations reported that they were victims of violence in Mexico, and that 31.4% of women and 17.2% of men said they had been sexually abused. A 2019 report by the United Nations refugee commission said women and girls were at risk of sexual violence while heading north through Mexico.
The administration’s rule “does virtually nothing to ensure that a third country is a ‘safe option,’ ” Judge William Fletcher, an appointee of President Bill Clinton, said in the lead opinion for a threejudge panel. He said federal law allows the United States to require asylum seekers to apply first in another country only if that country has a “full and fair asylum procedure,” a requirement the Trump administration brushed aside.
The two other judges agreed that the asylum ban was illegal, for similar reasons, but said the court’s ruling should be narrower. Judge Richard Clifton, appointed by President George W. Bush, said he was supporting Fletcher’s order for a nationwide injunction only because he was bound by the court’s past rulings on related issues. Judge Eric Miller, a Trump appointee, said the injunction should be limited to the much smaller number of immigrants represented by the four advocacy groups that filed the suit.
Asylum is granted to noncitizens who can show a “wellfounded fear of persecution” in their home country for reasons such as race, religion, political views or sexual orientation. It allows immigrants to obtain work permits and eventually apply for citizenship.
Enforcement of the asylum ban has gone back and forth since last July. U.S. District Judge Jon Tigar of Oakland blocked its enforcement a week after it took effect, but the Supreme Court intervened in September and said the ban could be enforced until the government’s appeal of Tigar’s order reached the high court. The appeals court ruling Monday upheld a later decision by Tigar declaring the ban illegal.
Last Tuesday, U.S. District Judge Timothy Kelly of Washington, D.C., a Trump appointee, blocked the rule on narrower grounds — that the administration had not sought public comment before implementing the ban. The Supreme Court’s order does not apply to Kelly’s decision, which the government could appeal. But it has little practical effect for now because the U.S. government has closed the Mexican border to newcomers due to the threat of the coronavirus.
Monday’s ruling “further confirms the illegality of the myriad schemes the Trump administration has employed to undermine and ultimately destroy our asylum system,” said Melissa Crow of the Southern Poverty Law Center, an attorney for the advocacy groups that filed the suit.
There was no immediate comment from the Trump administration.