Federal Judge Allows Trump Admin Rule Restricting Asylum Access to Continue

By Spencer S. Hsu, The Washington Post

24 July 19

resident Trump’s move to sharply cut asylum requests by Central Americans and others fleeing persecution cleared its first legal hurdle Wednesday, as a federal judge said migrant advocacy groups failed to quantify how their legal services would be harmed by the change.

U.S. District Judge Timothy J. Kelly of Washington, D.C., denied a request by the groups to block the 10-day-old rule while their lawsuit proceeds. A second federal judge in San Francisco will weigh a similar challenge brought by the American Civil Liberties Union and civil rights groups at a hearing later Wednesday.

The cases present the first court tests of the new rule, announced July 15, which bars migrants from applying for asylum if they passed through any other country en route to the U.S.-Mexico border and failed to seek protection first in that country. The change imposes the heaviest burden on people from Central American countries, who constitute the vast majority of asylum seekers.

In a bench ruling Wednesday, Kelly said he did not discount the impact on asylum seekers who are turned away or deported under the change, but said two nonprofit plaintiffs who brought the lawsuit — the Capital Area Immigrants’ Rights Coalition of Washington and the Texas-based Refugee and Immigrant Center for Education and Legal Services — had failed to establish that their organizations would suffer “certain, immediate and great harm” to warrant halting the new measure.

Kelly said that while the groups argued they are being “irreparably harmed” by the rule because it forces them to serve fewer individuals, families and children, they had failed to show how many of their clients are subject to the change or who could face deportation in the two to four weeks a restraining order would last.

“There is just nothing in the record to suggest how many individuals, if any, fall into that category,” Kelly said. “Plaintiffs have not shown the likelihood of irreparable harm by the standard required and the temporary restraining order motion is denied.”

Reaction from the Trump administration was swift. U.S. Citizenship and Immigration Services Acting Director Ken Cuccinelli in a tweet called the ruling a major victory for the administration’s “efforts to stop the crisis at our Southern border.”

Plaintiffs attorney Mitchell Reich, who argued the case, said in a statement, “We had hoped to obtain immediate relief from the potentially drastic consequences of this rule, which we firmly believe violates U.S. law and the Constitution. We continue to believe that the merits of this case are very strong and look forward to their resolution in the courts.”

Neal Katyal, former acting U.S. Solicitor General and like Reich a partner at Hogan Lovells, which is pro bono counsel in the Washington case, had argued the rule “radically rewrites” asylum law, stripping eligibility from migrants fleeing some of the most dangerous places in the world.

At a hearing Monday, the plaintiffs had said the rule violates the Immigration and Nationality Act and the Administrative Procedure Act, which governs federal rulemaking. The groups said the immigration act states clearly that once applicants reach U.S. soil, they have a right to appeal for protection.

Arguing for the advocacy groups, Reich said because they filed suit one day after the rule was announced they did not identify individuals. However, Reich argued it was a “moral certainty” that clients served by the Texas center and the coalition in Washington, which has a large Central American immigrant population, would face expedited removal proceedings and deportation, adding that 60 percent of the coalition’s clients are subject to the rule change, as well as 94 percent of children it represents.

Speaking metaphorically, Reich said, “We have thousands of clocks striking midnight everywhere around the country,” each representing an individual asylum seeker whose time in the United States could end.

The majority of those who claim fear at the U.S. southern border are granted access to the U.S. immigration system, and many are released from custody while their claims are pending. Because U.S. courts are clogged with a backlog of nearly 1 million cases, it can take months or years before asylum applicants go before a judge.

Attorney General William P. Barr said in a statement last week that those who are truly facing persecution should apply for refuge in the first safe place they reach, not the most desirable destination. He likened the surge of asylum claims at the U.S. southern border to “forum shopping” by applicants attempting to exploit American generosity.

Justice Department data shows that asylum filings have nearly quadrupled in the past five years and that fewer than 20 percent of Central American applicants are eventually granted protections by U.S. courts.

The government said it has apprehended 524,446 non-Mexican border crossers in the first eight months of the fiscal year, nearly double the prior two years combined

Under the new rule, Hondurans and Salvadorans would have to be denied asylum in Guatemala or Mexico before applying in the United States, and Guatemalans would have to be denied first in Mexico.

Guatemala and Mexico have not signed on to the plan.

The U.S. government in court filings acknowledged “ongoing diplomatic discussions” and said the rule change “aids ongoing negotiations” with other countries to deter mass migration.”