SAN DIEGO – The federal government can’t employ bait-and-switch tactics to apply new restrictions on asylum to block migrants from making humanitarian claims at U.S. ports of entry after they waited for months in Mexico, a federal judge found Tuesday.
U.S. District Judge Cynthia Bashant issued a 36-page order Tuesday barring immigration officials from using the so-called asylum ban to block migrants who were turned back to Mexico under a metering policy and claims ports of entry along the southern border were “full” from making claims for asylum.
“The putative class members in this case did exactly what the government told them to do: they did not make direct claims for asylum at a [port of entry] and instead returned to Mexico to wait for an opportunity to access the asylum process in the United States,” Bashant wrote.
“Now, the government is arguing that these class members never attempted to enter, entered, or arrived at a [port of entry] before July 16, 2019, and, therefore, the newly promulgated Asylum Ban is applicable to them. The court disagrees,” she added.
Both policies were implemented by the Trump administration in an attempt to stem the flow of immigrants attempting to enter the U.S. through both legal and illegal means.
Melissa Crow, Southern Poverty Law Center’s Immigrant Justice Project senior supervising attorney, said in a statement their clients want the chance to have their asylum claims heard.
“Today’s ruling is an important one for the thousands of asylum seekers who followed the ‘rules’ and waited their turn, only to be told they were out of luck once the new ban was announced. These vulnerable individuals, many of whom waited for months to apply for asylum, simply want an opportunity to have the merits of their asylum cases heard,” Crow said.
Bashant’s order comes the day after the federal government announced it would send asylum seekers arriving at the southern border to seek asylum in Guatemala and a former asylum officer spoke out about what he called an “illegal process.”
In her order, Bashant rejected the government’s assertion the injunction sought was outside the scope of the original claims brought by asylum seekers in 2017 arguing immigration officials illegally blocked access to the asylum process.
“Plaintiffs’ claims regarding the asylum ban and plaintiffs’ underlying claims in their [second amended complaint] are so intertwined that denying plaintiffs’ motion for preliminary injunction could effectively eviscerate the asylum claims plaintiffs seek to preserve in their underlying suit,” Bashant wrote.
The judge rejected Justice Department attorney Scott Stewart’s suggestion in court those who were subject to the metering or “turnback” policy had not “arrived” at ports of entry and were thus subject to the asylum ban enacted after they’d attempted to enter the U.S.
“Although the regulation clearly states that it applies only to aliens who entered, attempted to enter, or arrived on or after July 16, 2019, the government is now attempting to apply the asylum ban beyond its unambiguous constraints to capture the subclass of plaintiffs who are, by definition, not subject to this rule,” Bashant wrote.
The judge also suggested if the government intended for the new asylum restrictions to apply for those who were already waiting in Mexico to claim asylum, the new rule should have expressly stated so.
As part of the injunction order, Bashant also certified a subclass of “non-Mexican citizens” who were denied access to the asylum process before the asylum ban went into effect on July 16.
According to a court declaration, the subclass may consist of up to 26,000 asylum seekers who were on waitlists in 12 Mexican border cities to seek asylum in the U.S. as of this past August.
Bashant rejected the federal government’s argument it could not rely on the waitlists tracked using different means along various border cities in Mexico to determine whether individuals had indeed sought asylum before the asylum ban went into effect.
“Class membership can be determined by cross-checking a class members’ name with the names included on these waitlists. Surely the government can determine, taking into account the delay in processing asylum claims at each [port of entry], which individuals listed arrived before July 16, 2019, the asylum ban’s effective date,” Bashant wrote.