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Federal judge blocks administration’s new asylum rule

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A federal judge in San Francisco on Wednesday issued a nationwide preliminary injunction blocking a new government rule that would prohibit almost all migrants at the U.S.-Mexico border, including those from Central America, from applying for asylum.

U.S. District Judge Jon Tigar wrote that the rule issued by the administration of President Donald Trump last week is “likely invalid because it is inconsistent with the existing asylum laws” enacted by Congress. Tigar said the rule also appears to violate the federal Administrative Procedure Act, which requires that there must be notice and a chance for public comment on agency actions and that actions must be supported by a reasoned explanation.

Unless it is overturned on appeal, Tigar’s order will remain in effect until there is a full trial on a lawsuit filed by the Berkeley-based East Bay Sanctuary Covenant and three refugee assistance groups. The rule would bar asylum applications from migrants who traveled through another country en route to the southern border unless they sought and were refused asylum in the transit country.

In the case of migrants fleeing persecution in El Salvador, Guatemala and Honduras, asylum seekers would thus be required to apply for asylum in Mexico or in some instances in Guatemala.

Tigar said the rule ignores requirements in Congressional laws that asylum seekers can be pushed back to a third country such as Mexico only if they would be safe there and have access to a “full and fair” asylum process.

The evidence before him indicated that asylum seekers in Mexico are likely to be subjected to violence, denied asylum and/or returned to the countries from which they fled.

Tigar wrote:

“The rule provides none of these protections.”  

The judge wrote:

“An injunction would vindicate the public’s interest – which our existing immigration laws clearly articulate – in ensuring that we do not deliver aliens into the hands of their persecutors.”

In a previous case filed by the same four organizations, Tigar last year issued a preliminary injunction against another Trump administration rule that would have allowed asylum applications only from migrants who entered at official entry points at the southern border. The judge said that rule violated an immigration law that allows asylum applications from people who have entered the United States at any point, whether or not at an official entry point.

The U.S. Supreme Court declined to stay the earlier injunction, and the Justice Department is now appealing it before the 9th U.S. Circuit Court of Appeals.

American Civil Liberties Union attorney Lee Gelernt, who argued against the new rule on behalf of the refugee groups at a hearing before Tigar Wednesday morning, said in a statement:

“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.”

The U.S. Justice Department said in a statement that the new rule “falls well within the broad grant of authority” given by Congress to the U.S. attorney general and Homeland Security Department secretary. The judge was wrong to “second-guess the agencies’ expert policy judgment and to halt this critical measure on a nationwide basis,” the statement said.

Although an appeal seems likely, the statement did not say whether the Justice Department will appeal.

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