Trump Urges 9th Circ. To Reimpose Work Visa Ban
Law360 (November 19, 2020, 8:58 PM EST) — A California federal judge on Thursday temporarily barred the Trump administration from imposing new restrictions that would disqualify foreigners with certain criminal convictions, including misdemeanors and immigration offenses, from winning asylum.
Stepping in to halt the policy just one day before it was set to take effect, U.S. District Judge Susan Illston found that the administration had overstepped its legal authority and run afoul of Congress’ intent when it tried to strip asylum eligibility from people with less serious criminal convictions.
The U.S. government already bars migrants who have been convicted of certain serious crimes and terrorist offenses from being granted asylum. But under the new rule, a more expanded list of crimes — from illegal reentry to driving under the influence to using a fake ID — could bar an individual from winning protection.
The government’s stated aims to protect communities and discourage criminal behavior “are not problematic in and of themselves,” but the rule “sweeps too broadly,” Judge Illston said in a 47-page opinion.
“If Congress indeed gave the executive branch the authority to bar asylum eligibility irrespective of a crime’s seriousness, then defendants apparently could bar asylum eligibility based on a traffic ticket. The Court cannot read this congressional intent into the asylum statute,” she said.
Judge Illston also decided to block the policy across the U.S., remarking in her opinion that the government’s push to limit the order to the clients of the nonprofits involved in the lawsuit “borders on absurd” and would create a “bizarre and confusing multi-tiered immigration law system.”
A group of immigration legal services nonprofits had challenged the expanded bars in court earlier this month and requested emergency relief, arguing that the restrictions put the U.S. in violation of its international and legal obligations not to send people fleeing persecution back to danger. It would also disproportionately harm nonwhite immigrants who are more likely to be living in over-policed communities and targeted for arrest, they said.
The nonprofits further contended that the policy is invalid because it was issued by acting U.S. Department of Homeland Security chief Chad Wolf, who has been found by several federal courts to have been illegally appointed in violation of agency succession rules.
While Wolf’s appointment was not at issue in the emergency motion — and thus was not addressed in Thursday’s ruling — the judge noted that “there is a growing body of case law at the district court level finding defendant Wolf is not lawfully serving in his role.”
The Thursday decision thwarts the Trump administration’s latest attempt to limit asylum eligibility in an effort to deter migration at the U.S.-Mexico border. Federal courts have also struck down previous policies that would have stripped asylum eligibility from migrants who enter the U.S. between designated entry ports and from those who passed through a third country en route to the U.S.
In striking down this latest policy, Judge Illston took issue with several of the immigration rule’s provisions that she found to conflict with the federal immigration statute.
For instance, while the law specifically permits asylum-seekers with a first-time smuggling conviction related to bringing an immediate family member over the border with them, the contested immigration rule “has the opposite effect” and would bar a mother who crossed the border with her child from winning asylum, the opinion said.
Further, Judge Illston pointed out that it was “hard to conceive” how having two misdemeanor marijuana possession convictions — a disqualifier under the rule — would be considered a serious enough crime under the law to categorically bar a person from asylum.
The judge also said that the nonprofits had raised “serious questions” as to whether the administration had properly followed the regulatory process when implementing the restrictions, which were open for public comments for just 30 days.
Judge Illston set a hearing for Dec. 9 to discuss issuing a future order blocking the policy for longer while the case progresses.
Leila Kang, supervising litigation attorney for the Immigrant Defense Project and an attorney for the nonprofits, stressed that “the significance of this ruling really cannot be understated.”
“We are going to continue to fight to make sure that the court will be converting this into a preliminary injunction,” she told Law360 on Thursday.
A spokesperson for the U.S. Department of Homeland Security didn’t respond to a request for comment.
The nonprofits are represented by Sirine Shebaya and Cristina Velez of the National Immigration Project of the National Lawyers Guild; Sabrineh Ardalan, Philip L. Torrey and Sameer Ahmed of Harvard Law School’s Harvard Immigration and Refugee Clinical Program; Leila Kang and Nabilah Siddiquee of the Immigrant Defense Project; and Naomi A. Igra, Tobias S. Loss-Eaton, Chike B. Croslin, Alice A. Wang, Jack W. Pirozzolo and Kenyon C. Hall of Sidley Austin LLP.
The federal government is represented by Erez Reuveni, Patrick Glen, Christina Greer and Craig Newell of the U.S. Department of Justice‘s Civil Division.
The case is Pangea Legal Services et al. v. U.S. Department of Homeland Security et al., case number 3:20-cv-07721, in the U.S. District Court for the Northern District of California.
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