Judge Throws Out Trump Asylum Ban Targeting Central Americans

Migrants seeking U.S. asylum gather at the U.S.-Mexico border in Tijuana on Nov. 10, 2019, to hear names called from a waiting list. (AP Photo/Elliot Spagat, File)

WASHINGTON (CN) — Immigration advocates praised a federal judge on Wednesday for striking down a Trump administration asylum ban that targeted Central Americans seeking refuge in the United States. 

“The opinion is really a forceful rebuke of the government’s supposed justification for ramming this policy through the administrative process and bypassing all the traditional checks and balances,” Manoj Govindaiah, litigation director for RAICES, or the Refugee and Immigrant Center for Education and Legal Services, said in an interview Wednesday. 

Mainly impacting refugees from Honduras, El Salvador and Guatemala, the 2019 rule said immigrants who had passed through a third country while making their way to the U.S.-Mexico border would be ineligible for U.S. asylum unless they had applied for protection in a third country, other than the one they fled, and had been rejected there.

U.S. District Judge Timothy J. Kelly vacated the so-called transit ban in a Tuesday night order, finding that the administration failed to go through required procedures for rulemaking. 

“Defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements, because neither the ‘good cause’ nor the ‘foreign affairs function’ exceptions are satisfied on the record here,” the Trump-appointed Kelly wrote, abbreviating the Administrative Procedure Act.

Last year in East Bay Sanctuary Covenant v. Barr, a separate case over the same policy, the Supreme Court had let the administration enforce the rule, lifting an injunction out of San Francisco that the Ninth Circuit upheld.

But Kelly’s ruling immediately halts the policy and denies the government’s request for a stay pending appeal. “The court sees no reason to do so,” the 52-page opinion states. 

Claudia Cubas, litigation director at Capital Area Immigrants’ Rights Coalition, said the ruling protects the fundamental principle that individuals fearful for their safety can seek protection in the U.S. 

“We have clients who were barred from asylum and granted a lesser form of protection,” Cubas said in an interview Wednesday. “Hopefully now that the rule has been vacated, they will be able to get asylum and bring over their families, feel safe, have a pathway to a green card and eventually citizenship.”

RAICES and CAIR Coalition, where Cubas works, filed suit the day the rule took effect last July, arguing it impacted thousands of asylum seekers, the majority women and children fleeing persecution and violence in Central America. 

The Justice Department had claimed that the swift ban was critical to stop a surge of immigrants bringing children to the southern border and seeking asylum. 

But Kelly said the government failed to point to any case law allowing it to bypass the required notice-and-comment period.

“That is hardly surprising,” the judge wrote. “As this circuit has explained, ‘an agency has no interpretive authority over the APA.’”

Govindaiah, with Texas-based RAICES, commended Judge Kelly for recognizing that the administration tried to bypass the law. “We view it as a pretty forceful decision,” he said.

Hogan Lovells attorney Mitchell Reich also celebrated the ruling as a victory, having argued the case last year. The attorney had told the court that the transit ban would impact 60% of adults and 94% of children represented by the plaintiff organizations.

“Judge Kelly rightly concluded that the Administration failed to do its homework in issuing this rule,” Reich said in a statement Wednesday. “It didn’t hear from interested parties, and it didn’t give any remotely satisfactory explanation for ignoring normal administrative procedures.”

A separate legal challenge is underway to overturn a new Trump administration order blocking immigrants from entering the country during the novel coronavirus pandemic.

But Cubas explained that, with the transit ban struck down, pending cases filed prior to the Covid-19 ban will proceed and asylum seekers denied protection can seek to reopen cases.

“We’ve had cases where the judge said on the record, ‘I would have granted you asylum but for the transit ban,’” she said. “And hopefully because of this outcome they can actually do that now.”

Kelly alluded to the Covid-19 immigration ban, arguing it further proved striking down the transit ban would not cause the proffered crisis of a surge of asylum seekers. 

“Indeed, that recent pandemic-related administrative action appears to have effectively closed the southern border indefinitely to aliens seeking asylum only underscores that vacatur of the rule will not result in prohibitively disruptive consequences,” the judge wrote. 

The Justice Department is expected to appeal Tuesday’s ruling to the D.C. Circuit but did not respond to a request for comment this morning. 

“I could see the government thinking that, even though the order from Judge Kelly is very distinct in nature from the East Bay case that went up … they could see the Supreme Court as supporting them,” Govindaiah said, referring to the high court’s overturning last year of injunctive relief in the California case. 

Both immigration advocacy groups made clear, however, they will battle out an appeal.

“We are prepared to address that head on,” said Cubas, litigation director for CAIR Coalition in Washington.

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