Federal Judge Takes Up Fight Over New Asylum Restrictions

WASHINGTON (CN) – Immigrant advocacy lawyers urged a federal judge Monday to temporarily freeze the Trump administration’s new rules blocking most people crossing at the U.S.-Mexico border from seeking asylum.

People wait at an immigration center on the International Bridge 1 in Nuevo Laredo, Mexico, on July 16, 2019. (AP Photo/Marco Ugarte)

Under the rule enacted last week, immigrants seeking protection from violence and persecution will now have to demonstrate they applied for refugee status in a transit country and were denied, or are a victim of human trafficking.

Two advocacy groups that provide legal counsel to asylum seekers – The D.C.-based Capital Area Immigrants’ Rights Coalition and Refugee and Immigrant Center for Education and Legal Services, based in Texas – are now arguing the rule undermines their operations and targets the most vulnerable immigrants.

The government disputed the claim, saying it was based entirely on speculation. Justice Department attorney Scott Stewart called on the groups to present in court a noncitizen impacted by the ruling.

“They filed suit the day this rule was published,” Stewart said during Monday’s hearing in Washington, D.C. “We just have speculation. We don’t know if there is going to be any change.”

But plaintiffs’ attorney Mitchell Reich stressed the impact was dramatic and two-fold. He said the rule would both decrease the number of eligible asylum seekers in need of counsel and likely double the amount of time spent in initial counsel with immigrants in detention centers to determine if they have a “credible fear” standard for seeking asylum — a higher standard than the previous threshold of reasonable fear.

Reich said the rule would impact 60% of adults the groups counsel and 94% of children.

U.S. District Judge Timothy Kelly asked whether it was the vast number of immigrants impacted by the rule or one individual being made ineligible that would constitute an affront by the government on the organizations’ ability to operate.

Reich granted that harm to one individual would be cause for the court to consider the case but stressed that the rule more than cut in half the number of asylum seekers the groups can represent.

“We’re talking about on a macro scale,” Reich said. “The harm is so much greater because the organization is trying to save people from life and death situations.”

He further warned that in the next two weeks — the time period the advocacy groups are requesting a temporary restraining order on the rule — large numbers of immigrants will be subject to expedited removal from the country.

But the government countered that advocacy lawyers will now work strictly with surefire clients.

“They could win more cases because they are representing people who are truly deserving,” Stewart said.

Represented by the American Civil Liberties Union, four California-based immigrant advocacy groups filed a mirror case last week seeking immediate court action to block the rule that both lawsuits claim targets the most vulnerable immigrants in violation of federal and international law.

The ruling is the first major policy in line with President Donald Trump’s demand that countries like Mexico share the burden of immigrants fleeing in increased number from countries like El Salvador, Guatemala and Honduras.

“That’s going to swallow up most of our immigration system,” Reich argued, noting only immigrants seeking asylum from Mexico and Canada will not first be required to apply in a third country.

Judge Kelly questioned both sides in court Monday on whether he has a responsibility to defer to Attorney General William Barr, who said last week that the rule will protect the U.S. asylum system from exploitation.

“There is a strong argument to say it is in the public interest that the government not violate the law,” Reich replied, referring to alleged violations of the Immigration and Nationality Act.

The federal law allows noncitizens to be denied asylum based on a mutual agreement between the U.S. and a third country, if the person has “firmly settled” in the third country before arriving in the U.S. But the only country the U.S. has such an agreement with is Canada, according to the lawsuit.

The government repeatedly stressed that the rule was necessary to relieve pressure on the strained asylum system by stopping the flow of people who exacerbate backlogged immigration courts.

Kelly asked Stewart to give an example of an immigration policy change that resulted in a decrease in asylum seekers.

The DOJ attorney pointed to the Ninth Circuit’s 2017 decision in Flores v. DHS. By extending a 20-day release requirement originally for unaccompanied immigrant children to families, the court drew unprecedented numbers of immigrant families across the southern border, Stewart said.

Despite Reich arguing there was no clear line drawn between the increase in family crossings over the last two years and the Flores decision, Kelly said “the statistics speak for themselves.”

But the judge repeatedly questioned the harm that a “surge” of immigrants across the U.S.-Mexico posed to the public, and seemed unappeased when the government suggested the rule would prevent harm to immigrants on their journey to the U.S. to claim asylum.

“What flows from that?” Kelly asked. “Tell me what other sort of public safety and other harms flow from the surge?”

After three and a half hours of careful questioning of both sides, Kelly acknowledged the judge overseeing the case in California will hear arguments this week on whether to issue a restraining order, but said he has an obligation to make a quick decision on the case presented to him.

Also on Monday, the Trump administration announced it is expanding the authority of immigration officials to deport immigrants before they can go before a judge. The so-called “fast-track deportations” can apply to anyone who has been in the country less than two years. Previously, they could only be used for people arrested immediately after crossing the border.

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