Federal Appeals Court Upholds Block on Trump Administration’s Third-Country Asylum Rule

July 6, 2020 Updated: July 7, 2020

A federal appeals court on July 6 upheld a lower court’s decision to block a Trump administration rule that requires asylum-seekers to first seek protection in a country they pass through on their way to the U.S.–Mexico border.

The U.S. Court of Appeals for the 9th Circuit found that the rule, known as the “third-country asylum rule,” is unlawful under a federal law known as the Administrative Procedure Act (APA) when the rule was issued in July 2019. It said the rule was unlawful because it was inconsistent with immigration law as it “does virtually nothing to ensure that a third country is a safe option” and that it was promulgated in an “arbitrary and capricious” manner (pdf). The case is cited as East Bay Sanctuary Covenant v. Barr.

The 9th Circuit’s ruling is a second blow to the Trump administration’s policy in less than a week, after a district court in Washington blocked the rule from being enforced in a separate case, on the grounds that it was “unlawfully promulgated.”

The rule aims to reduce the number of meritless asylum claims, which have placed an overwhelming strain on the U.S. immigration system. It operates under the premise that the asylum-seekers who are fleeing their countries of origin because of fear of persecution or torture on the basis of race, religion, nationality, membership in a particular social group, or political opinion should initially seek protection in the first safe country they reach.

After the rule was issued, a group of nonprofit organizations that represent asylum-seekers (the plaintiffs) sued the Trump administration, seeking an injunction against the rule. They argued that it was invalid on the grounds that it was inconsistent with the immigration laws that the government said it was based on, that it was arbitrary and capricious, and that the rule was adopted without abiding by the APA’s requirements for notice-and-comment.

The district court ruled in favor of the plaintiffs on all three and granted the groups a nationwide preliminary injunction in July last year. This prompted an appeal to the 9th Circuit, which ruled to limit the injunction to California and Arizona, the two border states that fall within the 9th Circuit’s jurisdiction.

About a month later, the district court reinstated the previously issued nationwide injunction after it considered additional evidence. The case eventually made its way to the Supreme Court, which ruled to stay the injunction pending a decision by the 9th Circuit or a petition by the Trump administration to ask the Supreme Court to review the case.

The 9th Circuit ruled in favor of the plaintiffs on the first two grounds but didn’t decide on whether the rule was invalid without meeting the notice-and-comment requirement. The court also ruled that the plaintiffs would suffer irreparable harm and that an injunction is in the public interest.

“The court recognized the grave danger facing asylum seekers and blocked the Trump administration’s attempt to make an end-run around asylum protections enacted by Congress,” Lee Gelernt, an American Civil Liberties Union lawyer who argued for the plaintiffs, said in a statement.

The Justice Department didn’t immediately respond to a request by The Epoch Times for comment.

Last week, the U.S. District Court for the District of Columbia set aside the third-country asylum rule, arguing that the rule was unlawful because the Trump administration failed to abide by the APA’s notice-and-comment requirements, and had provided insufficient justification for not meeting those requirements.

Both rulings represent a setback for the Trump administration and President Donald Trump, who has taken a hard line against illegal immigration at the southern border, although the July 6 ruling doesn’t have a practical effect since the rule had already been blocked by the district court.

The United States faced an influx of asylum claims in recent years as smuggling groups and economic migrants have taken advantage of legal loopholes in a strained system.

The administration says the number of cases referred to the Justice Department for proceedings before an immigration judge had more than tripled between 2013 and 2018, but only a small minority of these individuals is ultimately granted asylum.

The DOJ said the third-country asylum rule seeks to curb the influx of asylum seekers by “more efficiently identifying aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.”

The rule aims to deter aliens whose claims lack merit and allow the United States to prioritize claims of others who have no other options. It contains three limited exceptions, including for individuals who can show they have been a “victim of a severe form of trafficking in persons.”

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