SAN FRANCISCO (CN) – A Trump administration lawyer found a tough audience in a Ninth Circuit panel Tuesday as he fought to overturn two nationwide injunctions blocking policies that aim to shrink the number of asylum seekers allowed to stay in the United States.
One policy, enacted in November 2018, limits asylum eligibility to those who enter the U.S. at official ports of entry. Another policy, enacted in January 2019, allows the government to make asylum seekers wait in Mexico while their asylum applications are pending. A different Ninth Circuit panel in May stayed the "wait in Mexico" policy injunction, allowing that rule to take effect pending appeal.
On Tuesday, U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, asked how the government can make immigrants who enter the U.S. outside official entry ports ineligible for asylum when Congress specifically wrote a law stating that aliens can seek asylum regardless of where they enter the country.
“How is that consistent with the text of the statute," Paez asked.
Justice Department lawyer Scott Stewart replied the policy does not stop border crossers from applying for asylum. It just means their applications will be rejected.
"The ability to apply for asylum doesn't guarantee any substantive outcome," Stewart said. "It doesn't say asylum must be granted in any particular case."
Arguing on behalf of immigrant advocacy groups who sued to block the rule, Lee Gelernt of the American Civil Liberties Union said the government's twisted interpretation would render the nation's immigration laws a sham.
"The government's distinction between, 'Oh yes you can apply outside of a port of entry, but you can never get it' would make a mockery of the statute," Gelernt argued.
The plaintiffs say the rule not only violates U.S. immigration law but also international commitments to human rights because it denies those fleeing persecution the right to seek refuge.
The Trump administration says the rule is necessary to deter a wave of Central American immigrants arriving at the southern border and to aid the U.S. in negotiations with Mexico and other nations to address a mass migration crisis.
Turning to the challenged "wait in Mexico" policy, U.S. Circuit Judge William Fletcher, also a Clinton appointee, questioned how the government can meet its commitment to avoid refoulment – the forcible return of refugees to a place where they fear persecution.
Stewart said the government does not have to abide by the same procedures required for regular removal proceedings when it sends border-crossing asylum seekers to wait in Mexico while their applications are pending.
"They don't need the same procedures, but you're giving them nothing," Fletcher said. "You're not even asking them the key question with respect to refoulement. That is, 'Are you afraid?'"
Stewart replied the asylum seekers can say something at any time during the process if they fear returning to Mexico.
"Do you have any evidence of any sort that tells you you're going to get a high percentage of people volunteering that information," Fletcher asked.
Stewart said a high number of people do claim fear of persecution, adding the government chose not to ask that question because it came to a "logical conclusion" that it would lead to false claims of fear.
"We keep coming back to logical," Fletcher replied. "You don't really have much in the record, do you?"
ACLU attorney Judy Rabinovitz argued the process is woefully inadequate because applicants are denied a right to legal counsel, a language interpreter and notice that they have to say they're afraid to get a credible fear assessment.
“You’ve got to apply it with at least a procedure that provides these protections against torture and non-refoulement," Rabinovitz said.
Rabinovitz also asked the panel to pay attention to declarations submitted by immigrant advocacy groups describing the kidnapping and attempted rape of immigrants south of the U.S.-Mexico border.
After about 90 minutes of debate, the panel took the arguments under submission.
Senior U.S. Circuit Judge Ferdinand Fernandez, a George H.W. Bush appointee, joined Fletcher and Paez on the panel but did not speak during the hearing Tuesday.
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