Calif. Court Blocks Asylum-Seekers’ Third-Country Transit Ban
By Alyssa Aquino
Law360 (February 16, 2021, 3:49 PM EST) — A California federal judge blocked an asylum rule finalized during the waning days of the Trump administration, ruling Tuesday that it is nearly identical to a rule the Ninth Circuit had already deemed illegal for doing “virtually nothing” to guarantee asylum-seekers’ safety.
U.S. District Judge Jon Tigar said the Dec. 17 regulation from the U.S. Department of Homeland Security and U.S. Department of Justice requiring asylum-seekers to first seek shelter in countries they passed en route to the U.S. didn’t address the Ninth Circuit’s concerns that migrants would be forced to seek protection in unsafe third countries.
For example, “the final rule does not acknowledge the ‘mountain of evidence’ contradicting the agencies’ conclusion that asylum in Mexico is a feasible alternative to asylum in the United States,” Judge Tigar said.
The government’s second pass at the rule included a requirement that countries that affected migrants pass through be signatories to two refugee treaties.
But “[a]s the government acknowledges, the Ninth Circuit has already held that ‘[t]his requirement does not remotely resemble the assurances of safety built into … [the Immigration and Nationality Act],’ and in fact is inconsistent with those provisions,” Judge Tigar said.
Katrina Eiland of the American Civil Liberties Union, one of the organizations challenging the asylum rule, told Law360 that the regulation had fallen outside the scope of President Joe Biden’s freeze on certain Trump administration policies because it went into effect on the former president’s final full day in office.
“It’s sort of a nail in the coffin in the Trump administration’s last-ditch efforts to dismantle the asylum system. It’s really exciting news to have this rule blocked and to have people to once again have a real opportunity to seek asylum,” Eiland said.
DHS didn’t respond to requests for comment.
The Trump administration issued the first version of the asylum restriction in July 2019, citing provisions in federal immigration law permitting the U.S. to send asylum-seekers to “safe third countries.”
But the Ninth Circuit rebuked the White House in early 2020, finding that the rule hadn’t included safety requirements ensuring that the third countries were viable “safe options” for migrants. The panel ultimately upheld a separate injunction order — also issued by Judge Tigar — blocking the restriction.
Washington, D.C., federal Judge Timothy Kelly, a Trump-appointee, also barred the policy after finding that the White House had skirted notice-and-comment requirements to issue the rule.
The arguments that convinced Judge Tigar to block the revamped asylum restriction on Tuesday generally align with the arguments that persuaded both him and the Ninth Circuit to bar its predecessor.
However, Judge Tigar “briefly” noted that his decision to enjoin the policy was further supported by the organizations’ new claims that Chad Wolf, who penned the regulation during his stint as acting DHS chief, was likely illegally installed to power.
The organizations are represented by Katrina Eiland, Cody Wofsy, Spencer Amdur, Morgan Russell, Lee Gelernt, Omar Jadwat, Anand Balakrishnan, Ming Cheung, Vasudha Talla and Angélica Salceda of the ACLU, Melissa Crow of the Southern Poverty Law Center and Baher Azmy, Angelo Guisado and Ghita Schwarz of the Center for Constitutional Rights.
The government, under the Trump administration, was represented by Erez Reuveni of the U.S. Department of Justice’s Office of Immigration Litigation.
The case is East Bay Sanctuary Covenant et al. v. Barr et al., case number 1:19-cv-04073, in the U.S. District Court for the Northern District of California.
–Editing by Orlando Lorenzo.
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