SAN FRANCISCO (CN) – A federal judge on Wednesday issued a preliminary injunction to continue blocking a Trump administration policy that would make asylum off limits to those who cross the border without legal permission.
During a hearing Wednesday morning, U.S. District Judge Jon Tigar signaled he was unlikely to revive the controversial asylum restrictions created by a presidential proclamation last month.
"I'm unlikely to disagree with myself because I've already decided these questions," Tigar said in court before following through on his tentative ruling.
The Ninth Circuit affirmed Tigar's temporary restraining order blocking the new asylum limits earlier this month. Tigar indicated Wednesday that the government had not presented new evidence or arguments that would change his mind.
Finding multiple reasons why the asylum ban is wrong, Tigar held it contradicts a law passed by Congress, the justification for it appears bogus, and the government failed to give 30 days notice and accept public comments before enacting it.
During oral arguments Wednesday, a government attorney urged Tigar to reconsider the nationwide scope of the court order. U.S. Justice Department lawyer Scott Stewart insisted relief should be limited to the four legal aid organizations that sued the Trump administration, and their clients.
Tigar replied that could lead to absurd results because the court would need to continually expand the injunction to cover the groups' future clients, and they would become "the most popular" legal aid groups at the border.
"How many future proceedings do you think we need," Tigar asked. "Would it be a weekly roundup?"
The judge also suggested the Justice Department's reliance on a newspaper article about smugglers encouraging families to cross the border together to avoid detention was "unquestionably thin" as support for its decision to make the ban effective immediately. The government claims the number of illegal border crossings would have surged if it followed the customary process of the 30-day notice and accepting public comments.
Tigar also questioned one of the main justifications for the policy. He asked how banning asylum for every person who crosses the border without permission will cut down on number of illegitimate claims.
"Isn't the only way it can reduce the number of meritless asylum claims is by simply reducing the total number of asylum claims," Tigar asked.
Stewart replied the asylum limits will discourage those who lack credible claims from strategically seeking asylum so they can stay in the country for months or years while their petitions are pending.
"Is there a sort of throwing out the baby with the bath water," Tigar asked. "Some persons with meritorious claims will never have an opportunity to present them."
U.S. laws guarantee those fleeing persecution based on their race, religion, politics, nationality, or membership in a particular group the right to apply for refugee status, regardless of where they enter the country. Both Tigar and the Ninth Circuit previously concluded interfering with that right would contradict an act of Congress and U.S. commitments in international treaties.
However, one dissenting Ninth Circuit judge said the asylum ban would not be incompatible with U.S. immigration laws. U.S. Circuit Judge Edward Leavy, a Ronald Reagan appointee, wrote that a "time-specific, area-specific limitation on an alien's eligibility" is not the same as categorically barring people from applying for asylum. But his opinion was overruled by two other Ninth Circuit judges.
The asylum ban has been blocked since Nov. 19 when Tigar issued a temporary restraining order. The asylum limits took effect on Nov. 9, after President Donald Trump issued a proclamation stating the new restrictions were necessary to address “the continuing and threatened mass migration of aliens with no basis for admission into the United States.”
Tigar issued a 30-page ruling granting the motion for a preliminary injunction Wednesday afternoon, a few hours before his temporary restraining order was set to expire.
The hearing in San Francisco occurred shortly after a federal judge in Washington blocked a separate Trump administration policy to deny asylum protections to people fleeing domestic violence and gang violence.
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