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Federal appeals court blocks third-country asylum rule for some 'metered' migrants

A court blocked one of the Trump administration's asylum restrictions from applying to those who arrived before the rule was to have been implemented but were made to wait anyway.
Image: Appeals Court Rules Against Trump's "Remain In Mexico" Policy, Then Stays The Order, Creating Confusion For Migrants At Border
Honduran migrants wait in line to plead their asylum cases at the El Caparral border crossing in Tijuana, Mexico, on Monday, March 2, 2020.Sandy Huffaker / Getty Images

A federal appeals court Thursday blocked one of the Trump administration's most stringent asylum restrictions from applying to people who arrived at the border before the rule was supposed to start but were forced to wait.

A panel of the 9th U.S. Circuit Court of Appeals in San Francisco lifted a stay and barred a particular group of asylum-seekers from being subjected to a policy that would block U.S. asylum for migrants who had not sought protection first in a country through which they traveled on their journey to the border.

The group comprises migrants who went to the border and sought to seek asylum before the rule's effective date in mid-July but who were forced to wait until after that date to present themselves at ports of entry.

The decision is part of a larger case in which immigrant advocates are challenging what they describe as tactics by the government to turn migrants away and make them wait to present their cases. Advocates say the tactics include "metering," or restricting the number of migrants allowed into the U.S. every day.

A U.S. district judge had temporarily blocked the policy from applying to migrants who had been made to wait, and the government asked the appeals court to grant a stay while the injunction was appealed.

The 9th Circuit granted a government stay pending appeal in the case in December.

The 2-1 decision Thursday said the record did not show "cognizable irreparable harm to the government over the relatively short period before the appeal of the preliminary injunction is resolved."

"Any harm suffered is largely the result of the government's own failure to keep records of asylum-seekers who have been metered or to provide the asylum-seekers with documentation of their attempt to seek asylum," the ruling said.

"That the government's asserted harm is largely self-inflicted 'severely undermines' its claim for equitable relief," it continued.

Melissa Crow, senior supervising attorney with the Immigrant Justice Project of the Southern Poverty Law Center, a nonprofit advocacy group, told NBC News that as of now "the transit rule does not apply to anyone who was metered before July 16 of 2019, which is going to affect thousands of people who are at various stages of applying for asylum."

Erika Pinheiro, director of litigation and policy for the immigrant rights group Al Otro Lado, said: "Today's order will protect the lives of asylum-seekers who were forced to endure extreme hardship while waiting in dangerous border cities for months for their chance to seek asylum in the United States. These asylum-seekers have a deep commitment to following our laws in seeking protection, and we are relieved to see that their decision to follow our government's instructions to wait in Mexico will not prejudice their chances for relief."

The departments of Justice and Homeland Security did not immediately respond to requests for comment.

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Previously, Customs and Border Protection told NBC News that it disputed having a policy of "metering," saying it engages in "queue management."

"Queue management is not a policy, it is our ports managing their missions with the resources they have. CBP officers at ports do not keep track of the number of people or vehicles waiting to present themselves at [ports of entry], as people waiting have not been given any U.S. government documents," CBP said in a statement.

"The number of inadmissible individuals CBP is able to process varies based upon case complexity; available resources; medical needs; translation requirements; holding/detention space; overall port volume; and ongoing enforcement actions," the agency said. "As we have done for several years, when our ports of entry reach capacity, we have to manage the queues and individuals presenting without documents may need to wait in Mexico as CBP officers work to process those already within our facilities."

"CBP stands behind our need to balance operational requirements, capabilities and capacity," the agency said.