Judge overturns Trump border rule requiring immigrants to first claim asylum in another country

Under the rule, the U.S. could refuse to consider a request for asylum from anyone who failed to apply for it after leaving home but before reaching the U.S.
Image: Stranded migrants from Africa, Cuba and Haiti, are taken to a shelter in Tegucigalpa
Migrants from Africa, Cuba and Haiti, stranded after borders were closed because of the coronavirus pandemic, board a bus going to a shelter in Tegucigalpa, Honduras, on June 3 during their trek northward to reach the U.S. Jorge Cabrera / Reuters file

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By Dennis Romero and Julia Ainsley

A federal judge ruled on Tuesday night that the Trump administration’s strictest asylum policy to date is illegal.

A rule put in place in 2019 prohibited immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border.

U.S. District Judge Timothy J. Kelly of Washington, D.C., ruled in favor of immigrant nonprofits and asylum-seekers who argued that the rule known as the "third-country asylum rule," which was jointly published by the Justice Department and the Department of Homeland Security, violated the Immigration and Nationality Act.

Kelly, who was appointed to the federal bench by President Donald Trump in 2017, agreed that in adopting the policy, the administration did not abide by the federal Administrative Procedure Act, or APA, which requires that Americans be given enough time and opportunity to weigh in on such rule changes.

The Immigration and Nationality Act, the judge argued, generally allows anyone who has made it to U.S. soil to apply for asylum, with some exceptions, including for those with criminal records.

"There are many circumstances in which courts appropriately defer to the national security judgments of the Executive," Kelly wrote. "But determining the scope of an APA exception is not one of them."

The judge noted that the Supreme Court had blocked an earlier injunction against the rule until the 9th U.S. Circuit Court of Appeals affirmed overturning the rule.

An attorney for the ACLU's Immigrants' Rights Project, which represented the plaintiffs, lauded the decision. "The court recognized that the Trump administration unlawfully skipped steps mandated by Congress to ensure transparency in its failed attempt to make an end-run around asylum protections," said Julie Veroff.

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Tuesday night's move, a major blow to the administration's toughest asylum policy, comes on the heels of the Supreme Court's decision June 18 to uphold the Deferred Action for Childhood Arrivals program, which has allowed nearly 800,000 young people, known as Dreamers, to avoid deportation.

The third-country rule appeared to be aimed at Central American migrants who claimed they were fleeing gang violence. Trump has vowed to halt the migrants' treks, including so-called caravans, through Mexico.

The rule has essentially forced asylum-seeking migrants from Honduras, Guatemala and El Salvador to first seek it from Mexico before asking the United States for help.

"This decision invalidates Trump's 'asylum ban' at the southern border," former acting Solicitor General Neal Katyal, an MSNBC legal analyst, said Tuesday night on Twitter.

Katyal, who said he was a party to the plaintiffs' challenge, said the ruling would take effect immediately.

On Twitter, immigration lawyer Aaron Reichlin-Melnick of the American Immigration Council called the decision "a fantastic victory."

The impact might not be felt immediately along the U.S.-Mexico border. Kelly wrote that "recent pandemic-related administrative action appears to have effectively closed the southern border indefinitely to aliens seeking asylum."

Last week, a federal judge in Los Angeles ordered the release of children held in the country's three family detention centers because of the danger posed by the coronavirus pandemic.

The Trump administration did record a win last week when the Supreme Court ruled that some asylum-seekers can be fast-tracked for deportation.