Courts Strike Down Trump Administration Rule Limiting Asylum

August 4, 2019 Updated: August 4, 2019

One federal judge struck down President Donald Trump’s Proclamation 9822, which limits asylum claims to those entering the United States at an officially designated port of entry, as another federal judge issued a national injunction preventing the rule’s application.

The policy was aimed at curbing the flow of Central American migrants coming to the United States, many in international caravans through Mexico.

Proclamation 9822, signed by the president on Nov. 9, 2018, declares that any asylum seekers trying to enter the United States must do so at a legal port of entry in order to have their asylum claims processed. Those entering illegally won’t be processed, according to the document.

“The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders,” Trump stated in the proclamation.

“I therefore must take immediate action to protect the national interest, and to maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum.”

But U.S. District Judge Randolph D. Moss of the U.S. District Court for the District of Columbia, appointed in 2014 by then-President Barack Obama, found in a 77-page decision on Aug. 2 that Trump’s proclamation both runs afoul of the Administrative Procedure Act (APA) and is “inconsistent with” the Immigration and Nationality Act (INA).

Moss quoted the INA: “any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum.”

The Trump administration argued unsuccessfully that the policy doesn’t hinder action by would-be asylees who enter the U.S. outside a legal port of entry, but took the position such individuals were ineligible to seek asylum in the first place.

Judge Moss disagreed.

“As a matter of common usage, no one would draw a meaningful distinction, for example, between a rule providing that children may not apply for a driver’s license and one providing that children are not eligible to receive a driver’s license,” he wrote. “Both locutions mean the same thing.”

The successful plaintiffs were represented by the Washington-based Hogan Lovells, Williams & Connolly, as well as the New York-based Human Rights First and the Chicago-based National Immigrant Justice Center.

Moss refused a request by plaintiffs to issue a nationwide so-called universal injunction preventing the government from enforcing the rule. His decision holds only in the jurisdiction of the U.S. District Court for the District of Columbia.

Asylum policy has been the subject of a raft of recent rulings by federal judges.

In the last few days, another federal judge also declined to issue a nationwide injunction against the rule, while a different federal judge moved forward with precisely such an injunction.

The APA, which is Public Law 79-404, governs how federal agencies propose and establish regulations and gives federal courts oversight over agency actions. The statute serves as a kind of “constitution” for U.S. administrative law, according to legal scholars.

“Fortunately, the court need not engage in such logistical gymnastics because the language of the APA and the controlling D.C. Circuit precedent are unambiguous,” Moss wrote in his order. “The Court … concludes that the proper remedy is to set the rule aside.”

Judge Jon Tigar of the Northern District of California, also an Obama appointee, found on July 24 that the rule was “inconsistent with the existing asylum laws” approved by Congress, and he issued an injunction preventing the administration from acting on the rule.

The same day, Moss’s colleague, U.S. District Judge Timothy Kelly of the District of Columbia, a Trump appointee, denied a request for a temporary restraining order against the rule dealing with asylum policy.

Moss’s ruling came after U.S. Attorney General William Barr ordered July 29 that individuals who claim they fear persecution in their home countries because of threats to their family members will no longer be eligible for asylum in this country. An asylum-seeker is required to demonstrate a well-founded fear of persecution based on religion, race, nationality, political opinion, or membership in a specific social group.

Barr overturned a decision by the Board of Immigration Appeals that held that a Mexican man’s family was a recognizable social group.

 

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