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Federal judge blocks asylum ban for migrants who enter illegally from Mexico

Undocumented migrants wait for asylum hearings outside the U.S. port of entry in Tijuana, Mexico, June 19, 2018. Speaking in Washington on Tuesday, President Donald Trump ridiculed what he called a total lack of border security, falsely blaming Democrats for separating families and dismissing as “crazy” Republican proposals to hire thousands of new immigration judges. (Sandy Huffaker/Copyright 2018 The New York Times)

A federal judge has temporarily blocked the Trump administration from denying asylum to migrants who crossed the southern border illegally, saying the president violated a "clear command" from Congress to allow them to apply.

In a ruling late Monday, U.S. District Judge Jon Tigar of San Francisco issued a nationwide restraining order barring enforcement of the policy announced by President Donald Trump on Nov. 8, which he billed as an urgent attempt to halt the flow of thousands of asylum-seeking families across the border each month.

The rule pursued by the Trump administration would allow only people who cross at legal checkpoints to request asylum. Those entering elsewhere would be able to seek a temporary form of protection that is harder to win and doesn't yield full citizenship. The changes would amount to a transformation of long-established asylum procedures, codified both at the international level and by Congress.


"Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," wrote the judge, who was nominated to the federal bench in 2012 by President Barack Obama. Tigar reasoned that the "failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process."

As a result of Tigar's restraining order, migrants may once again seek asylum either at legal entry points or after crossing illegally onto U.S. soil.

Several thousand migrants are now waiting to cross a legal entry point at San Ysidro, California across from Tijuana. Many are from a caravan that drew Trump's wrath in the weeks leading up to the midterm elections, when he made illegal immigration his closing argument and asserted without evidence that the caravan included "criminals and unknown Middle Easterners." Labeling the movements of Central American migrants a "national emergency," Trump deployed thousands of active-duty troops and coils of concertina wire to the border. Military officials indicated Monday and Tuesday that they are weighing when and whether to start redeploying some of those troops.

Tigar said the president could not shift asylum policy on his own. His order will remain in effect until Dec. 19, at which point the court will consider arguments for a permanent order.

The Trump administration said Tuesday it will continue to press the matter in court and signaled that this defeat could be temporary, alluding to a 5-4 decision by the Supreme Court in June that upheld a revised version of Trump's travel ban, an effort to bar foreigners from certain majority-Muslim nations and other countries from the United States.

"As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country," the Department of Justice and the Department of Homeland Security said in a joint statement that called the lawsuit "absurd." "We look forward to continuing to defend the Executive Branch's legitimate and well-reasoned exercise of its authority to address the crisis at our southern border."

The 37-page ruling was the latest in a string of court decisions blocking the administration's hard-line immigration policies, including its efforts to crack down on "sanctuary cities" and to rescind deportation protections for over a million undocumented immigrants who were either brought to the United States as children or given temporary protected status in this country because of national disasters and unrest in their homelands.

The government is in the process of appealing those rulings.

Tigar's decision - and the administration's attempt to characterize the migrants as violent - sets the stage for difficult choices on both sides of the U.S.-Mexico border.

In Mexico, thousands of Central American migrants are waiting in a crowded sports complex and squalid shelters to head north into the United States, where thousands of armed American soldiers are guarding the line to deter them from crossing.

As the hearing was underway Monday in Tigar's courtroom, Homeland Security Secretary Kirstjen Nielsen said the government had received reports that the migrant caravan was considering rushing the border and closed the travel lanes for a short period. Late last month, some in the caravan kicked and pushed their way through the Guatemala border into Mexico.

But a spokesman for the migrant caravan said the Central Americans were waiting peacefully in Mexico and had no intention of forcing their way into the United States.

U.S. Customs and Border Protection closed the entire San Ysidro crossing in San Diego for several hours before dawn, installing additional layers of razor wire and concrete barriers, then reopened it with 10 of the port's 26 vehicle lanes closed.

Clashing with the U.S. government is a frightening prospect for migrants. In May, a Border Patrol agent shot and killed a 19-year-old Guatemalan citizen named Claudia Patricia Gómez González, who had crossed into the United States illegally hoping to reunite with her longtime boyfriend. At the time, the Border Patrol officials said the officer had been attacked with blunt objects.

The challenge to the asylum ban was brought by the American Civil Liberties Union and other advocacy groups on behalf of East Bay Sanctuary Covenant. The order reflects the judge's view that the plaintiffs are likely to succeed on the merits, and would suffer irreparable injury from the executive action.

In his proclamation, Trump said the changes were necessary to prepare for the caravan's arrival, arguing that asylum seekers had no "lawful basis for admission into our country." In justifying the policy, the administration relied on the same emergency authority invoked as grounds for the "travel ban."

In a hearing Monday, Scott Stewart, a lawyer for the Justice Department, spoke of a "crushing strain" of migrants attempting to cross the border illegally. He alleged that most asylum claims were "ultimately meritless."

But the judge seemed skeptical, observing that border apprehensions are near historic lows and that, regardless, federal law says all people on U.S. soil can apply for asylum, no matter how they arrived.

Tigar voiced concern for the fate of asylum seekers under the changes. The administration's rule, he observed, would force individuals "to choose between violence at the border, violence at home, or giving up a pathway to refugee status."

And in his decision, he wrote that the government's argument that the manner of entry can be the lone factor rendering a migrant ineligible for asylum "strains credulity."

"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," he argued. "There simply is no reasonable way to harmonize the two."

The judge pointedly denied the claim that the president, by fiat, could give the manner of entry added legal weight as a determinant of asylum. He reasoned that the "interpretive guide" of United Nations compacts on asylum lent extra force to congressional requirements. The intent of Congress, Tigar wrote, was "unambiguous."

"And if what Defendants intend to say is that the President by proclamation can override Congress's clearly expressed legislative intent, simply because a statute conflicts with the President's policy goals, the Court rejects that argument also," the judge found.

Lee Gelernt, the ACLU attorney who argued the case, welcomed the ruling in a statement.

"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. Congress has been clear on this point for decades."

This article was written by Isaac Stanley-Becker and Maria Sacchetti, reporters for The Washington Post.