Judge Rips Trump Effort to Deport Asylum Seekers

A last-ditch effort by President Donald Trump’s administration to deport a class of thousands of immigrants who were stopped from making asylum claims was blocked from taking effect as the Trump presidency ends.

People wait to apply for asylum in the United States along the border in Tijuana, Mexico, July 16, 2019. (AP Photo/Gregory Bull, File)

SAN DIEGO (CN) — A federal judge who has stopped the deportations of thousands of Central American immigrants who were blocked from making asylum claims at the U.S.-Mexico border has blocked a last-ditch effort by the Trump administration to undermine the Immigration and Nationality Act.

In a 10-page order issued Monday, U.S. District Judge Cynthia Bashant, a Barack Obama appointee, enjoined the Trump administration’s Final Transit Rule from applying to non-Mexican immigrants who had been “metered” and waitlisted while attempting to seek asylum at ports of entry along the U.S.-Mexico border prior to July 16, 2019.

The latest rule — set to take effect Tuesday, the last day of Trump’s presidency — sought to circumvent Bashant’s prior orders could not apply to immigrants who arrived at ports of entry weeks and months before a so-called “asylum ban” went into effect only to be told to “wait their turn” to make asylum claims.

Melissa Crow, senior supervising attorney with Southern Poverty Law Center’s Immigrant Justice Project, represents legal nonprofit Al Otro Lado in the case. She said in a statement “over the last four years, the Trump administration has worked tirelessly to deny asylum seekers their legal rights.”

“This decision rejects what we hope will be their last attempt to undermine the rule of law and allow our class members, who would not have been subject to the [asylum] ban but for the government’s metering policy, an opportunity to have the merits of their claims heard,” Crow said.

Bashant previously enjoined the government from attempting to deport immigrants who would have made asylum claims but for the Trump administration’s “metering” policy that limited numbers of people into ports of entry along the U.S.-Mexico border.

This past March, the Ninth Circuit refused to stay Bashant’s block of the asylum ban from applying to class members waitlisted at ports of entry and challenging the “metering” practice in the Southern District of California while the government appealed the case.

To circumvent Bashant’s ruling, the Trump administration developed the Final Transit Rule this past December which “applies to all aliens who enter, attempt to enter, or arrive in the United States across the southern land border on or after July 16, 2019 … This includes, for example, aliens who may have approached the U.S. border but were subject to metering by DHS at a land border port of entry and did not physically cross the border into the United States before July 16, 2019.”

A footnote in the Final Transit Rule notes “This result is different from the district court’s reasoning in granting a preliminary injunction in Al Otro Lado, Inc. v. McAleenan,” and defined “entry,” “attempted entry” and “arrival” to require physical presence in the United States.

In her order, Bashant disputed it was lawful for Trump, under the Executive’s rulemaking authority, to issue the Final Transit Rule despite her preliminary injunction finding the Immigration and Nationality Act applied to those who had been metered at ports of entry prior to the enactment of the “asylum ban.”

“It is at least questionable, if not altogether doubtful, that defendants can redefine statutory terms in a regulation in direct contradiction to the court’s plain language interpretation, especially when their intention in doing so is to evade the import of the court’s previous rulings,” Bashant wrote.

Bashant called the Final Transit Rule “especially legally dubious” since her preliminary injunction blocking enforcement of the asylum ban against metered immigrants had not been overturned.

She noted the Trump administration was “unambiguous” that one purpose of the Final Transit Rule was to limit asylum eligibility for those class members she had found must have access to the asylum process.

“It is thus beyond doubt that defendants seek to enforce the regulation against the class, and that without injunctive relief, plaintiffs will be permanently barred from seeking asylum in the United States and could face physical danger if forced to return to their countries of origin,” Bashant wrote.

Department of Homeland Security did not respond to an email request for comment.

Oral arguments in the case are scheduled for Feb. 3.

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