'He May Not Rewrite Immigration Laws': Trump's Asylum Ban Blocked by Federal Judge

By Oliver Laughland, Guardian UK

20 November 18

Court issues temporary policy ban and says US president may not circumvent congress

federal judge has temporarily barred the Trump administration from refusing asylum to immigrants who cross the southern US border illegally.

The president issued a proclamation on 9 November declaring that anyone who crossed the southern border between official ports of entry would be ineligible for asylum. As the first of several caravans of migrants arrived at the US-Mexico border, Donald Trump said a ban was necessary to stop a national security threat.

But in his ruling on Monday, the US district judge Jon Tigar said legislation was clear that any foreigner arriving in the US, whether or not at a designated port of arrival, could apply for asylum. He also said the administration misused its authority to issue emergency regulations and waive a 30-day waiting period to consider comments on the policy change.

“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” said Tigar, a nominee of the previous president, Barack Obama.

The Department of Homeland Security (DHS) did not immediately comment on the ruling, which will remain in effect for one month barring an appeal. In issuing the ban, Trump used the same powers he used last year to impose a travel ban that was ultimately upheld by the supreme court.

If enforced, the ban would potentially make it harder for thousands of people to avoid deportation. DHS estimates that 70,000 people a year claim asylum between official ports of entry.

Baher Azmy, a lawyer for the Center for Constitutional Rights, which sued the government alongside the American Civil Liberties Union (ACLU), said: “Individuals are entitled to asylum if they cross between ports of entry. It couldn’t be clearer.”

About 3,000 people from the first of the caravans have arrived in Tijuana, Mexico, across the border from San Diego, California. US Customs and Border Protection said on Monday it closed off northbound traffic for several hours at the San Ysidro crossing. It has also installed movable wire-topped barriers, apparently to stop a potential rush of people.

As of Monday, 107 people detained between official crossings have sought asylum since Trump’s order came into effect, according to the DHS, which oversees Customs and Border Protection. Officials did not say whether those people’s cases were still progressing through the other, more difficult avenues available to them after the proclamation.

DHS wants asylum seekers at the southern border to appear at an official crossing. But many border crossings, such as in San Ysidro, have long waiting times. People are often forced to wait in shelters or outdoor camps on the Mexican side, sometimes for weeks.

Lee Gelernt, an ACLU lawyer, said some people were seeking asylum cross between official ports because they were in serious danger either in Mexico or their countries of origin. “We don’t condone people entering between ports of entry, but Congress has made the decision that if they do, they still need to be allowed to apply for asylum,” he said.

Trump issued the proclamation shortly after the midterm elections, during which he ratcheted up anti-immigrant rhetoric on the campaign trail and invoked conspiracy theories about migrant caravans thousands of miles from the US.

The radical restrictions were part of a drive to curtail immigration to the US, which led to the family separation crisis this year and a policy banning migrants from several Muslim-majority countries.