Trump’s Third-Country Asylum Ban Halted By California District Judge

A San Francisco-based federal judge on Wednesday temporarily blocked a Trump administration ban on asylum seekers who pass through another country en route to the U.S.-Mexico border. U.S. District Judge Jon Tigar issued a preliminary injunction that will halt the asylum ban nationwide. The move came hours after a federal judge presiding over similar litigation in the District of Columbia declined to stop its implementation.

In a 45-page order, Tigar found the rule ignored a pair of federal statutes that outline guidelines for barring asylum seekers who transit through a designated “safe third country” or have permanently resettled in another country. The new regulation, he wrote, “is likely invalid because it is inconsistent with the existing asylum laws” . Additionally, he found that the decision to enact the measure was “arbitrary and capricious.” While it purports to offer protections for migrants, the ban could potentially expose them to grave dangers as they’re forced to seek protection in Mexico or other nations before applying for asylum in the U.S., he said.

The decision, if followed, nullifies an earlier legal victory for President Donald Trump, who has sought to limit the flow of Central American aliens arriving at the border by enforcing common sense asylum reforms. The administration issued a fast-track regulation last week that bars asylum for migrants who pass through other nations and do not seek refuge in those places. Opponents of the measure quickly challenged it in federal courts, leading to the cases in San Francisco and Washington, D.C, both heard less than twenty-four hours apart.

The American Civil Liberties Union, which represents pro-migrant advocacy organizations in the San Francisco case, praised the decision to halt the latest asylum restrictions. ACLU attorney Lee Gelernt said in a written statement:

The court recognized, as it did with the first asylum ban, that the Trump administration was attempting an unlawful end-run around asylum protections enacted by Congress.

The ruling in San Francisco to block Trump’s latest asylum policy followed a separate judge’s decision earlier in the day to let the policy stand. In a ruling issued from the bench on Wednesday morning, D.C.-based District Judge Timothy Kelly denied a motion filed by immigrant legal service providers to block the implementation of the asylum ban.

Kelly said the plaintiffs, in that case, had not proved they would suffer irreparable harm as a result of the asylum ban. While Kelly acknowledged that the policy could have “far-reaching and significant effects,” he noted the plaintiffs were merely service providers, not the migrants who would be directly subject to the ban. Even as such, he said the plaintiffs failed to provide detailed evidence to show how the new policy would affect their work, apparently, the same burden of proof was not necessary in Northern California.

Kelly did not rule on the merits of the case, but suggested he would consider the “severely strained” immigration system when deciding the matter. The number of migrants arrested along the U.S.-Mexico border — a metric used to gauge illegal crossings — rose in recent months to the highest levels in more than a decade, a phenomenon that overwhelmed federal officials charged with their care and custody. Border arrests fell sharply in June but still remain high compared with levels under President Barack Obama and during President Trump’s early tenure in office. The nationwide injunction issued by Tigar overrides the earlier decision, although parties in both cases will probably appeal the rulings.

Trump lauded the D.C. ruling during remarks to reporters outside the White House on Wednesday afternoon. Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, also praised the D.C. decision in a tweet. Cuccinelli, whose agency is tasked with vetting asylum applicants, called it “a major victory for @realDonaldTrump’s efforts to stop the crisis at our Southern border.”

But the decision from Tigar later in the day nullified the earlier Trump victory and will freeze the new initiative pending the resolution of the legal fight or intervention from a higher court. Tigar, an Obama appointee, previously halted a November policy that banned migrants from seeking asylum if they entered the U.S. between ports of entry. He reassigned the latest case to himself last week on the grounds that the two disputes are related. During a hearing in San Francisco on Wednesday, Tigar grilled a Justice Department attorney, Scott Stewart, about the lack of protection for asylum seekers in Mexico and Guatemala, countries likely to be transited through on the way to the U.S. The judge said the evidence presented in the case about the dangers to migrants in Mexico was “stunning,” and questioned the administration about its lack of information related to asylum protections in Guatemala.

Tigar acknowledged during the hearing that his coming decision could conflict with Kelly’s earlier ruling in D.C. stating:

My ruling is not binding on him, just as his ruling is not binding on me. We have the appellate courts to sort this out for us.

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