A federal judge in San Francisco today questioned the legal grounds for President Donald Trump’s partial ban on granting immigrants asylum, but made no immediate decision on whether block the ban.
U.S. District Judge Jon Tigar took a request by several refugee assistance groups for a temporary restraining order under submission at the close of a hearing and will issue a written decision later.
If granted, a temporary restraining order would be in effect until the judge holds another hearing on whether to issue a preliminary injunction, the next step in the case.
The new restriction, issued by Trump in a proclamation on Nov. 9, allows immigrants to apply for asylum only if they cross the U.S. border at a designated entry point.
Trump’s proclamation cited the caravan of Central American migrants now approaching the Mexican border and said the measure was needed to prevent “overloading of our immigration and asylum system.”
Four groups led by the East Bay Sanctuary Covenant claim the ban violates the U.S. Immigration and Naturalization Act, which provides that anyone physically present or arriving in the United States, “whether or not at a designated port of arrival,” can apply for asylum.
American Civil Liberties Union attorney Lee Gelernt told Tigar, “Ultimately, this is a fight between the executive and legislative branches. Right now, Congress has been very clear that people who are present in the country are allowed to apply.”
The plaintiff groups also contend that some asylum seekers don’t know there are legal entry points, don’t know where they are located or have lengthy waits in dangerous conditions at those points.
U.S. Department of Justice attorney Scott Stewart argued that the immigration law gives the president broad discretion to decide which categories of immigrants — in this case, only those who enter at legal entry points — are eligible to apply for asylum.
But Tigar questioned, “How does it not render the expression of congressional intent a nullity?”
“I don’t know that the (Justice Department’s) argument is supported by the statute. If this rule is valid, what’s left of that expression of congressional intent?” the judge asked.
The asylum restriction stems from a combination of a rule issued by the Trump Administration on Nov. 8 and the president’s proclamation the next day. The rule, issued on an emergency basis, authorized the president to issue a proclamation denying asylum eligibility to people who cross the border with Mexico illegally. The president then did so.
In addition to claiming a violation of immigration law, the plaintiff groups contend the rule violated the U.S. Administrative Procedure Act by not allowing a 30-day public comment period.
The government contends the immediate rule was allowed under a foreign affairs exception because the administration is negotiating with Mexico about a possible “safe third country” agreement in which immigrants would be required to apply for asylum in Mexico first.
“We are in negotiations with Mexico. We can’t guarantee but we’re hopeful,” Stewart told Tigar.
Tigar asked whether there is any evidence of negotiations and queried how he should balance the promise of negotiations against the alleged hardship on asylum seekers.