Ninth Circuit Nixes Trump Rule on Asylum

Activists for migrant rights surround a group of Honduran asylum seekers camped on U.S. soil at San Diego’s Otay Mesa port of entry, seen from Tijuana, Mexico, on Dec. 17, 2018. (AP Photo/Moises Castillo)

(CN) — Refugees don’t have to be denied asylum in Mexico before applying in the United States, the Ninth Circuit ruled Monday, tossing aside a Trump administration rule.

Under the Trump administration’s July 2019 rule, people fleeing persecution and seeking to enter the safety of the United States via Mexico had to first apply for asylum there, and be denied that status by the Mexican government, before they could apply in the U.S.

The government had justified its rule using federal laws that allow the attorney general to set “limitations and conditions” on the asylum process and prohibit asylum for immigrants who were “firmly settled” in another country that is safe before applying for asylum in the United States. But a federal court in San Francisco found the rule arbitrary, and after several trips between the federal and circuit courts, a three-judge panel of the Ninth Circuit Court of Appeals on Monday agreed.

Immigration advocates led by the East Bay Sanctuary Covenant sued the government days after it instituted the rule, claiming it exposed immigrants to harm in the third country where they must first try for asylum and inhibited the advocates’ ability to protect their clients. And it forces too many immigrants to return to their home country, where they face the danger they were originally trying to escape, the advocates claimed.

U.S. District Judge Jon Tigar halted the rule with a nationwide injunction eight days after it was issued.

But the Ninth Circuit quickly trimmed the injunction, finding it should apply only to California and Arizona — the two states within the appellate court’s jurisdiction that border Mexico.

Tigar then reinstated his nationwide injunction and the Ninth Circuit again demurred, finding that the injunction should wait until it weighed the merits of the government’s request to stay the case.

On Monday, U.S. Circuit Judge William A. Fletcher wrote that the rule is inconsistent with the laws the government claimed it was based on, because it doesn’t ensure the safety of the third country where immigrants must first seek asylum. It’s true that the law allows the government to deny asylum in cases where an immigrant can instead resettle in a safe third country, Fletcher wrote, but the law also requires that third country to have signed an agreement with the U.S., promising safety and a “full and fair” asylum procedure.

That can’t apply here, Fletcher noted, since the U.S. has signed such an agreement only with Canada.

And this time, the Ninth Circuit left the broad injunction in place, finding that limiting it to California and Arizona would subject immigrants trying to enter the United States from Mexico through Texas or New Mexico to impermissible harm prohibited by the ruling. 

U.S. Circuit Judges Richard R. Clifton, a George W. Bush appointee, and Donald Trump appointee Eric D. Miller concurred in part but dissented in part, with each writing separately that they agreed with Fletcher’s main conclusion — that the rule is invalid — but also questioned the scope of the injunction.

Fletcher brushed off the government’s claim that asylum seekers at the Mexican border can be denied entry on the grounds that they are “firmly resettled” in Mexico.

“They do not intend to settle in Mexico,” Fletcher, a Bill Clinton appointee, wrote. “They have been there only for the time necessary to reach our border and apply for asylum. Nor have they received an offer of resettlement. Even if they were to receive such an offer, they have no ties to Mexico.”

Furthermore, evidence from the case contradicted the government’s claim that Mexico is a safe third option, including half a dozen exhibits introduced by the government, Fletcher wrote.

“The government misrepresents both the record and the district court’s opinion,” Fletcher wrote.

The Trump administration’s evidence cited a report from Doctors Without Borders finding that nearly 69% of refugees suffered violence as they traveled through Mexico to seek asylum, and over 31% of women doing so faced sexual abuse. And a 2019 report from the United Nations High Commissioner for Refugees admitted as evidence in the case showed “strong obstacles to accessing the asylum procedure” in Mexico.

More evidence introduced by the government described the U.N.’s finding in 2018 that “many refugees face deadly dangers in Mexico,” a U.N. factsheet said. “For many, the country is not safe at all.”

Fletcher quoted Judge Tigar’s underlying ruling:

“In sum,” Tigar wrote, “the bulk of the administrative record consists of human rights organizations documenting in exhaustive detail the ways in which those seeking asylum in Mexico are (1) subject to violence and abuse from third parties and government officials, (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which they fled persecution. Yet, even though this mountain of evidence points one way, the agencies went the other — with no explanation.” [Italics in original.]

And the rule inexplicably assumed that applying for asylum in the United States before applying in a third country meant the immigrant didn’t have a worthwhile claim for asylum.

“The fact that an alien might prefer to seek asylum in the United States rather than Mexico or Guatemala may be reflective of the relative desirability of asylum in these countries, but it has no bearing on the validity of the alien’s underlying asylum claim,” Fletcher wrote.

Finally, the government didn’t consider how the rule would affect unaccompanied children who seek asylum. 

Under a 2008 amendment to the Immigration and Nationalization Act, Congress exempted unaccompanied minors from rules barring asylum when an immigrant has a safe third country as an option. And it directed immigration authorities to take asylum applications from unaccompanied children through an asylum officer in a nonadversarial interview, instead of through an immigration court.

But the Trump administration’s new rule doesn’t make any distinction for children fleeing persecution on their own, Fletcher noted, quoting precedent from a U.S. Supreme Court case that outlines one criterion by which a government regulation can fail.

“In failing to explain why the rule provides no special protection for unaccompanied minors, the agencies ‘entirely failed to consider an important aspect of the problem,’” Fletcher wrote.

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