Miriam Jordan and Zolan Kanno-Youngs

Judge Jon S. Tigar of U.S. District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. It would have also affected many migrants from Africa, Asia and other regions.

The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, briefly delivering the administration a win. But Tigar’s order prevents the rule from being carried out until the legal issues can be debated more fully.

The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up a vast majority of asylum-seekers arriving at the southern border, the policy would virtually terminate asylum there.

“This new rule is likely invalid because it is inconsistent with the existing asylum laws,” Tigar wrote in his ruling Wednesday, adding that the government’s decision to put it in place was “arbitrary and capricious.”

The government, which is expected to appeal the decision, has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum-seekers with legitimate cases who must wait longer to secure the protection they deserve.

Under the policy, which the administration announced on July 15, only immigrants who have officially lost their bids for asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States.

Hondurans and Salvadorans have to apply for asylum and be denied in Guatemala or Mexico before they become eligible to apply in the United States, and Guatemalans have to apply and be denied in Mexico.

The policy reversed long-standing asylum laws that ensured people could seek safe haven no matter how they got to the United States. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and the Refugee and Immigrant Center for Education and Legal Services, or RAICES.

“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,” said Lee Gelernt, the ACLU lawyer who argued the case in San Francisco. The ACLU was joined by the Center for Constitutional Rights and the Southern Poverty Law Center.

The groups argued that immigration laws enacted by Congress expressly state that a person is ineligible for asylum only if the applicant is “firmly resettled” in another country before arriving in the United States. The laws also require an asylum-seeker to request protection elsewhere only if the United States has entered into an agreement with that country and the applicant was guaranteed a “full and fair procedure” there, they said.

A Justice Department spokesman contested the argument that the rule defied the law, saying that Congress gave the attorney general and homeland security secretary license to bar certain categories of migrants. “The bar here falls well within that broad grant of authority,” he said. “The district court was wrong to conclude otherwise.”

During a hearing in the case Wednesday, a lawyer for the Justice Department, Scott Stewart, said that a large influx of migrant families had spawned a “crisis” that had become “particularly stark” and created a “strain” on the asylum system.

“Migrants understand the basics of the incentives and are informed about how changes in law and policy can affect their options,” Stewart told the judge.

Tigar voiced concern about forcing asylum-seekers to apply for protection in Mexico or Guatemala. “We don’t see how anyone could read this record and think those are safe countries,” he said, referring to the rule’s language that migrants must apply to the first safe country.

The judge also said that the government did not address the “adequacy of the asylum system in Guatemala,” which is not equipped to handle a surge in applications.

Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said it was inhumane and cruel to force people fleeing violence to seek safety in places that are as dangerous as the homes they fled. “Everyone seeking protection has the right to humane treatment and a fair asylum process under U.S. and international law,” she said.

In federal court in Washington, two advocacy groups made similar arguments against the new policy.

But that judge, Timothy J. Kelly, found that the groups did not sufficiently support their claim that “irreparable harm” would be done to the plaintiffs in the case if the policy were not blocked. While the rule would affect migrants seeking asylum, the judge said, “the plaintiffs before me here are not asylum-seekers.”

“They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he added.

In recent years, the number of migrants petitioning for asylum has skyrocketed.

Migrant families and unaccompanied children have been turning themselves in to Border Patrol agents and then requesting asylum, which typically enables them to remain in the United States for years as their cases wind through the backlogged immigration courts. Only about 20 percent of them ultimately win asylum, according to the government, and many of those whose applications are rejected remain in the country unlawfully.

The administration announced the new asylum policy despite the fact that Guatemala and Mexico had not agreed to the plan, which means those countries have made no assurances that they would grant asylum to migrants intending to go to the United States.

Talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting that had been scheduled for July 15 at the White House. On Wednesday, President Donald Trump said that his administration was considering imposing tariffs on Guatemalan exports or taxing money sent home by migrants.

The new asylum rule is just one of many efforts by the Trump administration to curb the entry of migrants.

At ports of entry, Customs and Border Protection agents have significantly slowed the processing of applicants through metering — limiting how many migrants are processed to as few as a dozen per day.

And some 16,000 migrants are waiting in Mexican border towns like Tijuana under a policy commonly referred to as “Remain in Mexico,” which forces asylum-seekers to wait in Mexico until the day of their court hearing. The policy makes it more difficult for the migrants to secure a lawyer to represent them in the United States, undermining their chances of winning protections.

In November, Trump unveiled a separate policy that barred migrants from applying for asylum if they failed to make the request at a legal checkpoint. Tigar, who was also hearing that case, issued a temporary restraining order blocking that rule. The case is currently on appeal in the 9th Circuit.

This article originally appeared in <a href="https://www.nytimes.com/2019/07/24/us/asylum-ruling-tro.html" id="a2072c6d-d7d5-3119-abe5-9af20700ebd7">The New York Times</a>.

New Rule to Bar Asylum Seekers Is Blocked After a Day of Dueling Rulings

LOS ANGELES — A federal judge Wednesday ordered the Trump administration to continue accepting asylum claims from all eligible migrants arriving in the United States, temporarily thwarting the president’s latest attempt to stanch the flow of migrants crossing the southern border.

The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum-seekers arriving at the southern border, the policy would virtually terminate asylum there.

The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter how they got to the United States. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and the Refugee and Immigrant Center for Education and Legal Services, or RAICES.

“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,” said Lee Gelernt, the ACLU lawyer who argued the case in San Francisco.

The groups challenging the rule argued that immigration laws enacted by Congress expressly state that a person is ineligible for asylum only if the applicant is “firmly resettled” in another country before arriving in the United States. The laws also require an asylum-seeker to request protection elsewhere only if the United States has entered into an agreement with that country and the applicant was guaranteed a “full and fair procedure” there, they said.

In November, Trump unveiled a separate policy that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Tigar, who was also hearing that case, issued a temporary restraining order blocking that rule. The case is currently on appeal in the 9th Circuit.

LOS ANGELES — A federal judge on Wednesday ordered the Trump administration to continue accepting asylum claims from all eligible migrants arriving in the United States, temporarily thwarting the president’s latest attempt to stanch the flow of migrants crossing the southern border.

Judge Jon S. Tigar of U.S. District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year.

The government has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum-seekers with legitimate cases.

Under the policy, which the administration announced on July 15, only immigrants who have officially lost their bids for asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States. The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter how they got to the United States.

A Justice Department spokesman contested the argument that the rule defied the law, saying that Congress gave the attorney general and homeland security secretary license to bar certain categories of migrants. “The bar here falls well within that broad grant of authority,” he said.

Judge Jon S. Tigar of U.S. District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, delivering the administration a win.

The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum-seekers arriving at the southern border, the rule would virtually terminate asylum there.

The government, which is expected to appeal the decision, has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum-seekers with legitimate cases.

In federal court in Washington, two advocacy groups made similar arguments against the new policy. But that judge, Timothy J. Kelly, found that the groups did not sufficiently support their claim that “irreparable harm” would be done to the plaintiffs in the case if the policy were not blocked.

Two Judges Split on New Rule That Would Block Many Asylum Petitions

The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, delivering the administration a win.

Lee Gelernt, the ACLU lawyer who argued the case in San Francisco, said after a court hearing on Wednesday that “the stakes are enormous. If the rule were upheld, it would virtually end asylum at the southern border for everyone other than Mexicans.”

During the hearing, a lawyer for the Justice Department, Scott Stewart, said that a large influx of migrant families had spawned a “crisis” that had become “particularly stark” and created a “strain” on the asylum system.

In San Francisco, Tigar did not rule on the merits of the case, but his order prevents the rule from being carried out until the legal issues can be debated more fully.

The rule is just one of many efforts by the Trump administration to curb the entry of migrants.

On Wednesday, President Donald Trump said that his administration was considering imposing tariffs on its exports or taxing money sent home by migrants.

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Miriam Jordan and Zolan Kanno-Youngs

Articles written by the author

New Rule to Bar Asylum Seekers Is Blocked After a Day of Dueling Rulings

New Rule to Bar Asylum Seekers Is Blocked After a Day of Dueling Rulings

New Rule to Bar Asylum Seekers Is Blocked After a Day of Dueling Rulings

Two Judges Split on New Rule That Would Block Many Asylum Petitions

Two Judges Split on New Rule That Would Block Many Asylum Petitions