SAN FRANCISCO (CN) – Splitting with a colleague on the East Coast, a federal judge on Wednesday blocked a Trump administration rule that made most immigrants reaching the U.S. southern border ineligible for asylum, finding the policy placed asylum seekers in imminent danger.
The rule, enacted July 16, makes all noncitizens arriving at the southern border ineligible for refugee status unless they applied for and were denied protection in a country they passed along the way. The rule makes exceptions for victims of human trafficking.
Tigar agreed with a group of immigrant advocacy groups that argued the Trump administration failed to consider evidence that asylum seekers in Mexico are subjected to violence and abuse, denied rights under Mexican and international law, and wrongly returned to countries from which they fled persecution.
"The organizations have made a strong showing that the Rule contains insufficient safeguards to ensure that applicants do not suffer persecution in those third countries or will not be wrongfully returned to their original countries of persecution," Tigar wrote in his 45-page ruling.
Tigar's decision came mere hours after U.S. District Judge Timothy Kelly in Washington – a Donald Trump appointee – rejected a request for a temporary restraining order, finding immigrant advocates failed to show asylum seekers would suffer irreparable harm without court intervention.
At a hearing Wednesday morning, Tigar said Kelly's ruling won't necessarily influence his decision on the policy because each judge falls under the jurisdiction of separate appeals courts with different bodies of case law.
"Judge Kelly has the benefit of the same luxury I do," Tigar, a Barack Obama appointee, said. "We have the appellate courts to sort this out for us."
Arguing in San Francisco Wednesday, ACLU attorney Lee Gelernt said the asylum limits were enacted in an arbitrary and capricious manner because the Trump administration failed to consider the dangers migrants face in Guatemala and Mexico or the inadequacy of their asylum systems.
Justice Department lawyer Scott Stewart said the rules are necessary to stop a surge in immigrants arriving at the southern border and making bogus claims for asylum so they can stay in the U.S. while their cases wind through immigration court, a process that can take a year or longer.
Border agents apprehended 524,466 non-Mexican border crossers in the first eight months of fiscal year 2019, almost twice the number apprehended in the prior two years combined.
Stewart said the new policy "vastly improves the international approach to refugees" and will ensure "people who appear at our southern border actually do have strong asylum claims."
The rule requires noncitizens apply for asylum in transit countries if those countries are signatories to one of three international agreements: the 1951 Convention on the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture.
Gelernt argued that almost every country in the world has signed on to one of those agreements, but that doesn't mean those countries are safe or offer adequate protection for refugees.
Tigar asked whether the Trump administration believes nations that signed one of those agreements provide "equivalent protection" to what is available in the United States. Stewart replied the government finds those countries offer "adequate and appropriate" protection.
Though the rule enacted last week cited evidence on asylum rules in Mexico, Tigar said he could not find "a scintilla of evidence" on the adequacy of asylum in Guatemala, the only other country that Central American migrants might pass on their way to the United States.
Stewart argued that if Tigar finds the government failed to adequately consider all evidence, he should keep the rule in place while ordering the government to go back and issue a new rule that takes additional evidence into account.
Tigar said he would only do that if he finds the rule does not violate laws passed by Congress that require the government let people apply for asylum regardless of where they enter the country.
Last year, Tigar blocked a policy that made asylum off limits to all those who did not enter the U.S. at an official port of entry. The Ninth Circuit upheld Tigar's ruling pending appeal.
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