A Court Ruling Isn’t Enough to Save Asylum

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In Tijuana, migrants wait in front of the El Caparral office to get an appointment to apply for asylum in the U.S.

The Trump administration, after weeks of incremental steps toward ending asylum in the U.S., entered a rule into the Federal Register to effectively bar all asylum seekers from filing at the southern border. But last night, a judge in California said that the rule went too far.

Granting a preliminary injunction to the American Civil Liberties Union’s lawyers, Judge Jon Tigar, presiding over the U.S. District Court for the Northern District of California, handed the groups challenging Trump’s rule a major victory. The rule, Tigar notes, is “arbitrary and capricious,” and the injunction takes effect immediately.

The federal judge’s decision may not be enough to prevent the administration from reaching its goal. Stephen Miller, a Trump adviser on immigration issues, wants zero refugees in the U.S.—and he’s said as much. Indeed, policies such as Migrant Protection Protocols, metering, proposed safe third country agreements, and others have made it harder to file for asylum. The latest rule, now halted, bars virtually all asylum seekers from filing in the U.S.

Asylum seekers trying to reach the U.S. must travel through Mexico in order to reach the southern border, and the rule disqualifies those passing through a third country en route to the U.S. Migrants can apply to enter the U.S. through a different higher standard, known as “withholding of removal,” or under the Convention Against Torture, but both of these paths require a higher burden of evidence to win and gain entry to the U.S.

“The court recognized, as it did with the first asylum ban, that the Trump administration was attempting an unlawful end run around asylum protections enacted by Congress,” ACLU attorney Lee Gelernt said in a statement regarding Wednesday’s ruling. (The same judge halted a similar asylum ban in November 2018.)

In another challenge to the same asylum rule, a court in Washington, D.C., decided on Monday that the Trump policy did not justify an injunction. On Twitter, Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli called Monday’s ruling a victory for the administration.

Nevertheless, the California court’s decision granting a preliminary injunction on this latest asylum rule is significant. A preliminary injunction is a much bigger win for the plaintiffs than a temporary restraining order, which is what the ACLU, the Southern Poverty Law Center, and the Center for Constitutional Rights had hoped for when they filed the day after the interim final rule took effect. In order to grant a preliminary injunction, the judge is legally required to believe the case is unlikely to succeed on its merits. Accordingly, a defendant is unlikely to take the case to trial knowing that it is probably a lost cause.

But Angelo Guisado, a staff attorney for the Center for Constitutional Rights and a plaintiff in the case, says he fully believes the government will “appeal the decision to the Ninth Circuit, most likely seeking a stay of the implementation of the order.”

The judge’s ruling on Wednesday in California was based on several determinations. The ruling argued that Congress decides asylum eligibility, so the new rule likely violates existing laws. The rule also requires that asylum seekers be removed to any third country, without signing an agreement with another country or even determining if that country is safe for asylum seekers, which violates American immigration law. The rule also ignores laws such as refugee resettlement obligations and bypasses the public comment period in violation of the Administrative Procedure Act.

“Judge Tigar’s ruling is—as it was in the first instance—a careful, methodical, and thorough repudiation of the Trump administration’s attempts to rewrite our immigration laws by executive fiat,” Guisado told me. “Practically speaking, it means that the hundreds of asylum seekers whom I spoke with this week in Tijuana will have at least some of the access to the asylum process that our country is obligated to provide.”

The asylum eligibility rule was announced days after a failed safe third country agreement negotiation with Guatemala. A safe third country agreement is a bilateral agreement between two countries with similar asylum systems. The U.S. has an agreement with Canada that says you must apply for asylum in whichever of the two countries you arrive in first. Because of the geography of migration in Central America, migrants from countries such as Honduras and El Salvador must travel through Guatemala to reach Mexico and the U.S. Thus, they would have had to apply for asylum in Guatemala, a country with an amateur asylum system. Guatemala has the fourth-highest murder rate in the world, and also faces widespread poverty and a changing climate that makes it harder each year for farmers to grow enough food—hardly the qualifications needed to be a safe third country.

Yet even before the judge in California granted an injunction against this latest rule, the administration was mulling other avenues. On Wednesday, President Trump issued a statement on his preferred medium, Twitter, condemning Guatemala for the safe third country agreement that fell apart under pressure from Guatemalan courts. Last week, Guatemalan President Jimmy Morales canceled a planned summit with Trump where it was reported that he was planning to sign the agreement. But on Twitter, Trump is now threatening Guatemala with tariffs or even taxing the money Guatemalans in the U.S. send home to their families—12 percent of GDP in Guatemala. He added that “Guatemala has not been good.”

Morales has expressed frustration with the Guatemalan court’s stall on negotiations with Trump, which essentially said that he must consult the Guatemalan Congress before signing a safe third country agreement.

Elections for president in Guatemala will take place August 11, but Morales, despite his unpopularity, will remain in power until January. This may be long enough to broker a deal on immigration with the U.S.

Guatemala and the U.S. made a joint statement Monday through the Department of Homeland Security about H-2A visas (for temporary or seasonal agricultural work), ostensibly to address “irregular migration.” Due to its location, Guatemala has become a focal point of the administration’s crackdown on immigration. Today, NPR reported that the administration is looking to apply a travel ban to the country. It’s possible that Trump will push to reopen negotiations on a safe third country agreement with Guatemala, something immigration advocates have said for weeks would endanger migrants’ lives.

Even the California judge’s ringing condemnation of the Trump administration’s efforts to block asylum seekers might not be enough to protect migrants from the cruelest policies.

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