SAN DIEGO (CN) – A federal judge overseeing an immigration class action found Tuesday that asylum seekers aren’t at risk of being deported under the “safe third country” rule to three South American countries many are fleeing, despite reports this week deportations have been made to Guatemala.
In a 6-page order, U.S. District Judge Cynthia Bashant denied without prejudice plaintiff Al Otro Lado’s request to temporarily restrain the government from applying the rule, involving Asylum Cooperative Agreements entered between the United States and Guatemala, Honduras and El Salvador, to class members.
The agreements implement a statutory exemption to asylum in the Immigration and Nationality Act by allowing the U.S. attorney general to remove an otherwise eligible asylum seeker so that they can pursue asylum in one of those three countries – so long as it’s not their country of origin and they can’t show they’d be persecuted.
Bashant found the asylum seekers had failed to show they’d face irreparable injury absent a restraining order because they had not shown the new Trump administration rule was likely to be applied to them.
The judge pointed to a government declaration by Todd Hoffman, the executive director of Admissibility and Passenger Programs with Customs and Border Protection’s Office of Field Operations.
As of Dec. 20, Hoffman confirmed the rule had only been applied in the El Paso field office and just a single individual had been referred under the rule, only to be reprocessed for a different form of removal proceedings.
“The fact that defendants have referred a single individual pursuant under the ACA rule at a port of entry – who was then reprocessed pursuant to a different removal authority – does not create a ‘strong threat’ of enforcement of the rule against the class members,” Bashant wrote.
University of San Diego Trans-Border Institute faculty director Everard Meade said there’s no precedent for the “safe third country” rule and that it likely wasn’t initially used because immigration officials are “not trying to make asylum policy more rational – they’re trying to get rid of the contemporary asylum policy as we know it.”
“Part of the reason they haven’t used it is they maybe never intended to use it to affect immigration policy, but to affect immigration politics,” Meade said, calling the rule “a political gesture.”
Geoffrey Hoffman, director of the University of Houston Law Center Immigration Clinic, said the rule may not have been used by immigration officials last year because asylum seekers have been blocked from seeking asylum based on other criteria.
“The ACA rule is not necessary because they’re adjudicating credible fear interviews. The rules have gotten so stringent people are not passing their credible fear interviews,” Hoffman said.
“It’s part and parcel of the Trump administration’s efforts to put roadblocks for people applying for persecution-based relief,” he added.
But the federal government’s implementation of constantly changing immigration rules meant Bashant’s order didn’t consider the latest information when it was issued Tuesday: New information revealed by Buzzfeed on Monday showed as of late December, 43 asylum seekers from El Salvador and Honduras have already been deported to Guatemala under the rule.
The Department of Homeland Security confirmed to Buzzfeed it was also planning to deport Mexican nationals seeking asylum in the U.S. to Guatemala under the rule.
Bashant’s order did consider the federal government’s constantly evolving immigration enforcement practices. She found if the class members learn the federal government has applied or “will imminently apply” the rule to any class member they can renew their restraining order request.
Al Otro Lado did not immediately return an email request.
Also in the case, the Ninth Circuit on Thursday is hearing an appeal by the federal government on Bashant’s order blocking its application of the so-called asylum ban on migrants metered at ports of entry before the ban went into effect.