WASHINGTON (CN) — The Trump administration pushed the D.C. Circuit on Tuesday to let it label immigrants as ineligible for asylum at the U.S.-Mexico border.
Though a federal judge had found last year that the eligibility rule violated the Immigration and Nationality Act, Erez Reuveni, assistant director at the Department of Justice, said the statute is open to interpretation.
“The District Court was wrong,” Reuveni said at virtual arguments before a three-judge panel in Washington.
“I don’t know that it’s the statute is as crystal clear as the District Court thought on this matter of entry application versus eligibility,” Reuveni said.
According to a set of provisions that Congress added to the immigration law in 1996: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …) irrespective of such alien’s status, may apply for asylum.” (Parentheses in original.)
But Reuveni said there is a difference between applying and being marked ineligible from the get-go.
“What that means is you can apply for asylum regardless of whether you cross at a port of entry, or legally between ports of entry, or if the United States brings you here against the will, or takes you on the high seas,” he said. “But none of that means you’re eligible. All that means is you can apply.”
Reuveni also highlighted another constitutional provision that says if an immigrant crosses the border between ports of entry after having been removed, they are categorically barred from asylum.
In the case here, the government was sued by 19 people who entered the United States illegally between ports of entry after the rule went into effect.
Arguing on their behalf, attorney Amy Sahraia of Williams and Connolly called on the D.C. Circuit to affirm, even though none of her clients actually applied for asylum.
“That is for the simple reason that they were apprehended before they had the opportunity to do so,” Sahraia continued. “But the fact that apprehension forced them to raise their claims defensively changes nothing about the legal nature of those claims. The legal claims are the same for our plaintiffs and for individuals who would have applied affirmatively for asylum.”
Reuveni, the government’s lawyer, said the proper venue to test such claims is in the removal proceedings for each individual plaintiff.
“There is a vehicle for individuals to raise claims and vindicate the interests,” he said. “So the inference here is that the organizations have no claim.”
Sahraia batted down this argument. The government’s argument that this provision strips a court of jurisdiction over these claims is wrong “for the simple reason that the claims do not arise from removal proceedings,” she said.
Sahraia said the “claims here are quintessential [Administrative Procedures Act] claims arising from agency rulemaking that are within the court’s federal question jurisdiction.”
U.S. Circuit Judge Raymond Randolph, a George H.W. Bush appointee, questioned Saharia on her arguments.
“Your claim is a facial challenge, so that includes a subset of the individuals who are affected by the rule. But what about all the others? And what about the felons?” Randolph posed.
“These people, all of these plaintiffs were categorically ineligible for asylum and otherwise would have been eligible. None of the plaintiffs are felons,” Sahraia said.
Mitchell Reich, of Hogan Lovells, also spoke Tuesday on behalf of two individual plaintiffs.
“Our argument is not that the right to apply guarantees eligibility. Instead, the right to apply, irrespective of status, and whether or not you inserted a point of entry guarantees that you won’t have an application denied on that exact characteristic,” he said.
Randolph asked Reich Tuesday if the case would still matter next year.
“This is a pure hypothetical. Let’s suppose that the Biden administration — if it becomes an administration — on the first day, January 20, [issues] whatever the proclamations is that would moot this case,” he said.
“We think it would be entirely appropriate for the courts to hold this case in advance pending the inauguration to see what happens,” Reich said. “I think we would need to see the content of the proclamation to determine whether it truly moots the case.”
U.S Circuit Judge Sri Srinivasan, a Barack Obama appointee, also brought a hypothetical before Reuveni about standing.
“If the individuals get past the jurisdictional bars that you’ve asserted, and they have standing,” he questioned, “and you don’t contest the individual standing, and they fall within the zone of interest — does it matter if the organizations don’t?”
“No, I don’t think it does,” Reuveni said. “If you have one party with statutory jurisdiction, and standing, under this court’s cases, I think that’s enough.”
Also at the hearing, Reich pointed the panel to a footnote of the District Court’s 2019 opinion that says the government didn’t bring the argument that organizations would not have jurisdiction in this case.
U.S. Circuit Judge Karen Henderson, a Ronald Reagan, appointee, rounded out the panel. The court did not note when it intends to rule.
Along with the individual plaintiffs, the Capital Area Immigrants’ Rights Coalition and the Refugee and Immigrant Center for Education and Legal Services are also fighting the Trump administration policy.