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A federal judge has ruled the Trump administration must allow people who cross into the US without papers between official ports of entry (committing the misdemeanor of illegal entry) to seek asylum, putting a temporary hold on President Donald Trump’s November 9 asylum ban.
The ruling from Judge Jon S. Tigar of the Northern District of California, which came late Monday night, is the latest in a series of rulings coming out of West Coast courtrooms against the Trump administration’s immigration policy.
While it’s a temporary move, Tigar’s ruling shows the judge is extremely skeptical that the asylum ban will ultimately be found legal. The judge sees the ban as a violation of the clause in federal immigration law that allows someone to seek asylum “whether or not” they arrive at an official port of entry.
“Whatever the scope of the President’s authority,” Tigar wrote, “he may not rewrite the asylum laws to impose a condition that Congress has expressly forbidden.”
The asylum ban is arguably the most legally aggressive move the Trump administration has made on immigration, so Tigar’s order putting a temporary hold on it isn’t a surprise. Even people within the administration assumed the ban would be put on hold by lower courts.
What the White House hopes is that the newly ensconced conservative majority on the Supreme Court will side with the president — and that the Supreme Court will have the opportunity to do that soon.
The administration’s aim is to limit asylum to people who present themselves at ports of entry. But that wait already stretches days, weeks or even months at certain ports. Under the asylum ban, people unable to wait that long would essentially have to choose between immediate protection (of a lesser and riskier form) and a monthslong wait to start the process for full asylum rights.
Now, crossing between ports of entry won’t force migrants to give up their chance at asylum. But their access to it will still depend on the discretion of an administration that is on the record, and in court, arguing that they shouldn’t be allowed to apply for it.
The asylum ban is presidential discretion brought right up to the edge of a congressionally enacted law
Tigar’s ruling is an indication that he feels the asylum ban may violate the clause in federal law that allows people to apply for asylum “whether or not at a designated port of arrival.”
The Trump administration argues that the executive branch has broad discretion to set requirements for asylum, and to issue presidential proclamations limiting entry — as the Supreme Court found in upholding the travel ban earlier this year.
Opponents, led in this case by the ACLU and the Southern Poverty Law Center, say there’s a difference between using discretion to fill in the gaps of a law and trying to do an end-run around something Congress wrote into the law, and that the asylum ban represents the latter.
During the hearing that preceded Judge Tigar’s order on Monday, he was deeply skeptical of the government’s side of the argument. At one point he asked a sarcastic hypothetical about whether a law that said people were allowed to come to the courthouse by any method they chose would conflict with a policy that said people weren’t allowed to come by bicycle.
There are also questions about whether the administration violated the Administrative Procedure Act, which governs how regulations are supposed to be developed, by skipping the usual steps of public notification and comment before putting the regulation that governs the asylum ban into effect. (The administration argued that the rise in apprehensions of asylum-seekers, especially families, over the past few months made it urgent enough to justify skipping the usual process.)
The policy was in effect for nine days before being put on hold. According to the Department of Homeland Security, no asylum-seekers were actually deported during that time.
Under the new regulation, border-crossers fearing persecution weren’t automatically deported because they were still eligible for lesser forms of humanitarian protection; they just had to clear a much higher bar in screening interviews to stay in the US and apply for protection, which meant their chances of failing the screening interview and getting summarily deported were much higher. Even if they were allowed to stay to apply for protection and won their cases, they wouldn’t be eligible for permanent legal status.
A senior administration official told reporters Monday that 107 people who’d been apprehended since the asylum ban went into effect were waiting for their screening interviews.
It’s possible that some people were simply deported because they mistakenly thought it wouldn’t matter if they expressed any fear of persecution in their home countries — or that they tried to seek asylum but were rebuffed by immigration officers failing to follow the directions set down in the new policy. But there’s no way to know that for sure.
The new immigration policy process: act first, litigate later, and race to the Supreme Court
The most surprising thing about Judge Tigar’s ruling is that it took more than a week after the asylum ban went into effect for him to issue it. While the ban was being developed, administration officials admitted that they assumed it would be put on hold by a court in a matter of days (with some speculation that it would be put on hold before it could even go into effect).
Courts out of the Ninth Circuit (which includes the Northern District of California) issued injunctions against Trump’s first two travel bans and a partial injunction against the third; the Supreme Court overruled the circuit and allowed the third travel ban to remain permanently in effect in June 2018.
Courts in the Ninth Circuit also put a hold on Trump’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program, which allowed about 700,000 young unauthorized immigrants to get work permits and temporarily avoid deportation, and his decision to strip Temporary Protected Status from hundreds of thousands of immigrants who’ve lived in the US for decades. They’ve sided with California in Trump’s efforts to strike down the state’s “sanctuary” laws, and to block funding from cities that limit cooperation with federal immigration enforcement.
The asylum ban is different from the rest of these pending court battles in two important ways. For one thing, the administration’s whole argument is that it’s a response to an emergency at the US-Mexico border — that’s why they needed to rush out the regulation — which gives them some leverage to try to accelerate the case to the Supreme Court.
For another, the asylum ban was designed and implemented not only after the Trump administration had already gotten a Supreme Court victory in a somewhat-similar case — the travel ban — but after ensconcing Justice Brett Kavanaugh on the court, turning a swing court into a solidly 5-4 conservative one.
In the meantime, though, the administration is (yet again) in the odd position of being responsible for implementing the very policies that they blame for creating a crisis.
They’re dealing with the effects of long-term shifts in who is coming to the US without papers (which have resulted in fewer people coming illegally, but in a higher percentage of border-crossers being families, children, or asylum-seekers who need additional resources and protections). They claim that they don’t have the resources to deal with the people who are coming in now effectively, while rejecting the idea that more resources would be sufficient — and insisting that Congress needs to step in to make the asylum process more restrictive.
And they’re trying to pull every lever at their disposal throughout the executive branch to restrict the scope of asylum on their own.
The court’s ruling can force the administration to allow people to seek asylum. But it can’t control how individual asylum officers evaluate the screening interviews of individual asylum-seekers — or what individual border and detention officers say to asylum-seekers about what their rights are. And it can’t control what rumors get spread through Mexico and Central America about what the US will and won’t allow.
The ruling against the administration could, in theory, backfire and encourage more people to come to the US and not to wait at ports of entry. (This is what some officials think happened after a federal judge in California forced the Trump administration to end the separation of families at the border at the end of June; the spike in family border crossings started in July, though it takes several weeks to cross through Central America to the US.)
But it’s more likely that it will just increase the fog of confusion that already surrounds border policy under Trump — a president who says that his administration is simply telling asylum-seekers to go home, even as his administration argues it’s trying to encourage them to come a different way.
