Judge Orders Feds to Reconsider Asylum Denials in Metering Class Action

In this Sept. 17, 2019 file photo, a U.S. Customs and Border Protection officer gives instructions to migrants who are on their way to apply for asylum in the United States, on International Bridge 1 as they depart Nuevo Laredo, Mexico. (AP Photo/Fernando Llano)

SAN DIEGO (CN) — A federal judge extended the scope of her preliminary injunction on Trump administration restrictions for immigrants seeking asylum at U.S. ports of entry, saying Friday that officials must reopen asylum claims that were denied before the injunction was issued last year.

On July 16, 2019, the Trump administration implemented the “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. 

Immigrants rights groups sued, claiming both policies were unlawful attempts to stem the flow of immigrants attempting to enter the U.S.

Advocates also requested an injunction, arguing the ban permanently barred people from the asylum process if their 30-day window to file for asylum in Mexico — the country they transited through — had expired and if they were “metered” before July 16.

U.S. District Judge Cynthia Bashant sided with advocates and granted an injunction on Nov. 19, 2019.

Bashant said the injunction was not outside the scope of plaintiffs’ initial claims against metering because the Trump administration’s metering policies illegally blocked access to the asylum process.

The injunction barred immigration officials from using the asylum ban to block migrants who were turned back to Mexico under the metering policy.

Bashant also certified a subclass of as many as 26,000 “non-Mexican” asylum seekers who were denied access before the asylum ban went into effect on July 16.

The Trump administration’s appeal of the injunction is still pending before the Ninth Circuit. 

In July, plaintiffs sought an order clarifying that the government must reconsider previously denied asylum claims and make all efforts to both identify class members and inform them of the injunction. 

Attorneys for the Trump administration argued in court papers the injunction was ineffective while a Ninth Circuit administrative stay was in place between Dec. 20, 2019 and March 5, 2020. 

On Friday, Bashant issued a 25-page order clarifying that the injunction is retroactive and applies to those whose asylum claims were denied before the injunction went into effect on Nov. 19.

“The preliminary injunction provides equitable relief to restore class members to the appropriate status quo ante litem in this case – the period before July 16, 2019 when asylum eligibility requirements preceding the asylum ban were still in effect,” the order said. “While the administrative stay allowed defendants to stay the course regarding the application of the asylum ban at the time of the stay, it does not deprive the preliminary injunction of its full effect once the stay was lifted.”

Immigration officials’ application of the asylum ban during the administrative stay was lawful and not in contempt of the injunction, the order said.

In a statement, the plaintiffs’ attorneys said the ruling means the Trump administration “may no longer cherry-pick which class members receive the benefits of the court’s preliminary injunction in this case.”

Those metered before the effective date of the asylum ban are entitled to a screening of their asylum claim, the attorneys said.

“In fact, the court orders the government to actively help identify class members and for its agencies to reopen or reconsider cases where the asylum ban has been applied to class members.”

Bashant also rejected immigration officials’ argument that only migrants with final deportation orders should be screened for class membership since those with ongoing cases can raise asylum claims at later stages. 

The order says officials should make all efforts to inform migrants of their rights to relief under the injunction, regardless of what stage of deportation proceedings they’re in.

A Justice Department spokesperson did not immediately respond to a request for comment on the ruling.

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