(CN) — A federal judge made good on her threat to block a new Trump administration rule about to take effect that adds more triggers for asylum ineligibility, a rule legal advocates say is unconstitutionally vague and unfairly harms people fleeing violence and persecution.
U.S. District Judge Susan Illston said in a virtual hearing Wednesday the rule finalized last month by the U.S. Department of Homeland Security and U.S. Department of Justice is “substantively and procedurally defective.”
She followed up Thursday by granting a temporary restraining order requested by Pangea Legal Services, a California-based immigration legal service provider, which would block the rule before it takes effect Nov. 20.
Under U.S. law, a person may be granted asylum if they demonstrate “well-founded fear” of being persecuted based on their multiple identities. But they become ineligible if they fall into “mandatory bars” including having committed a serious crime, persecuting others or engaging in terrorist activity.
The federal agencies proposed a new rule last December granting the attorney general authority to designate offenses that would trigger asylum ineligibility. The expanded list includes convictions for drunk driving, marijuana possession and convictions where asylum officers had “reason to believe” crimes were committed in furtherance of street gang activity.
Asylum seekers would also be barred if they were named in accusations of domestic violence, even if it didn’t result in a conviction.
Pangea sued the federal agencies on Nov. 2, saying the rule demonstrates “arbitrary and capricious rulemaking” and violates the Administrative Procedure Act by departing from long standing discretionary review of asylum seekers’ prior convictions.
The public also had too little time to review the rule — only 30 days over the 2019 end-of-year holiday period — or to comment on it, another APA violation, according to the complaint filed in the Northern District of California.
The rule also unlawfully strips protections under the Immigration and Nationality Act (INA), namely by triggering asylum ineligibility when an applicant has a criminal conviction that has been vacated, modified or expunged.
Plaintiff Dolores Street Community Services say in the complaint the rule would harm people such as their client, identified only as Bryan, whose permanent resident status was threatened after being convicted of crimes related to his mental health and substance abuse challenges.
Advocates helped Bryan seek asylum after he was placed in removal proceedings and helped him vacate prior convictions and access treatment, developments that the new rule would likely prevent.
The rule would allow adjudicators to “second-guess” a judge’s reasoning for vacating Bryan’s prior convictions, plaintiffs said in the motion for temporary restraining order.
“If allowed to take effect, these unprecedented changes will force countless people to return to countries where they will likely be beaten, tortured, or even killed,” the motion said.
In a brief opposing the TRO request, federal government attorneys cited the executive branch’s “broad authority and sound aims” to keep child abusers, smugglers, gang members and “wife beaters” out of the country.
In the virtual hearing Wednesday, U.S. Department of Justice attorney Scott Stewart defended the rule, saying it’s consistent with relevant asylum statutes and is meant to prevent dangerous people from obtaining asylum.
But Stewart told Illston the INA also grants agencies authority to adopt “limitations and conditions” on asylum eligibility that go beyond the asylum statute dealing with categorical bars.
IIlston, a Bill Clinton appointee, said the statute previously never barred people from asylum for marijuana possession or speeding convictions.
“I don’t see how that’s consistent,” Illston told Stewart.
She noted the term “serious crimes” reverberates across the existing statute and signals that additional bars can be added, but not “whatever you feel like.”
Plaintiffs’ counsel Chike Croslin of Sidley Austin told Illston examples of conditions that can be added under the statute include fingerprinting and background check requirements. The Trump administration is disregarding “Congress' express language” in the statute by adding additional bars, Croslin said in the hearing.
“We say the entire rule is invalid. It’s all inconsistent,” Croslin told Illston. “Deficiency goes to the core of the process.”
Illston asked Stewart whether the rule is “severable” in accordance with plaintiffs’ challenge and whether she could block parts of it from going into effect while letting others stay in place. Stewart said the Trump administration would prefer the rule’s validity to be judged after it takes effect and once it applies to a person’s case, but severability can also apply here.
“That kind of tailored remedy would be appropriate,” Stewart said. “Any relief needs to be specific to the part of the rule the court finds invalid.”
Illston took the matter under submission and said she would issue a ruling before Friday.
A Justice Department spokesperson did not immediately respond to an emailed request for comment on the hearing.
Also on Wednesday, a federal judge blocked the Trump administration from deporting asylum-seeking minors who arrive in the United States without a guardian.
The government relied on a U.S. Centers for Disease Control and Prevention order issued early in the coronavirus pandemic to deport more than 159,000 immigrants, including 8,800 children, according to Trump administration officials.
And last month, a federal judge extended the scope of a preliminary injunction on the Trump administration’s “Asylum Transit Rule” which made immigrants’ asylum claims invalid if they arrived at the U.S.-Mexico border from a country other than their country of origin and failed to apply for asylum there first.
Before the so-called asylum ban went into effect, immigration officials had been metering asylum seekers at the border, placing them on waitlists for claim adjudication or simply turning them away because ports of entry were purportedly full.
After immigrants’ rights groups sued, claiming both policies were unlawful attempts to stem the flow of immigrants attempting to enter the country, U.S. District Judge Cynthia Bashant issued a retroactive injunction and ordered officials to reopen asylum claims that were denied before the injunction was issued last year.
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