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Trump Administration’s Third-Country Transit Asylum Ban Struck Down by Federal Judge

Posted by Matthew Green | Jul 09, 2020 | 0 Comments

On June 30, U.S. District Judge Timothy J. Kelly struck down a Trump Administration policy that bars migrants from requesting asylum at the U.S.-Mexico border.  The policy, which was instituted in July 2019, is often referred to as the “third-country transit asylum ban” because it disqualifies migrants arriving at the southern border from receiving asylum unless they have been denied similar protection in another country prior to their U.S. arrival. Yet, as Immigration Impact points outt, “many of the countries that people typically travel through, like Guatemala, have virtually non-existent asylum systems or ways to keep asylum seekers safe.” As a result, migrants from Central America, who must pass through one other country at the minimum on their way to the U.S., have been especially affected by the asylum ban.

The Decision

Judge Kelly made his decision on the basis that the administration “unlawfully promulgated” the rule when it was put into sudden effect without public notice or comment.  Specifically speaking, the administration failed to comply with the Administrative Procedures Act (APA), which ensures that the American public receives advance notice and opportunity to comment on a new regulation before it is implemented.  In the legal proceedings, the government argued that, in this case, “advance notice of the third-country requirement would trigger a surge of applicants seeking to evade the rule before it took effect.” Much of this argument is based on an October 2018 newspaper article that suggests that such a surge occurred when the Trump Administration ended its policy of separating immigrant families at the border.   

The court did not agree.  In his 52-page opinion, Judge Kelly writes that “[t]he article does little if anything to support Defendants' prediction that undertaking notice-and-comment rulemaking would have led to a dramatic, immediate surge of asylum applicants at the border” and that “…other articles from the administrative record that Defendants cite either do not support, or even undermine, their prediction of such a surge.” 

The decision is considered a victory for asylum seekers and was welcomed by the plaintiffs, who include twenty-two individual asylum seekers and several immigrants' rights groups.

Other Lawsuits Challenging the Third-Country Transit Asylum Ban

This is not the first time the policy has been put before a judge.  Immediately following the implementation of the policy in July 2019, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the asylum restrictions on behalf of four groups.  As a result, U.S. District Judge Jon S. Tigar of San Francisco entered a preliminary injunction halting the asylum ban based on the fact that there was a "mountain" of evidence proving that migrants could not safely seek asylum in Mexico.  

In September of last year, however, the Supreme Court issued an unsigned order which voided the preliminary injunction and upheld enforcement of the policy—that is, it allowed the government to enforce the ban until June 30, when Judge Kelly made his ruling.  As it turns out, his decision grants final judgement against the government because the case before Judge Tigar is at an earlier stage of litigation.

Impact of the Decision

The impact of the court ruling remains to be seen.  Its reach is limited by two factors: the current coronavirus pandemic and the Trump Administration's strict stance on immigration.  BuzzFeed News reports, for example, that the Department of Homeland Security (DHS) will continue to bar asylum seekers under a pandemic-related policy deemed necessary to stop the spread of the coronavirus.  These pandemic-imposed restrictions have forced over 40,000 migrants to remain in Mexico and have consequently prevented them from seeking asylum. Another pandemic-related policy has made it more difficult for migrants to win humanitarian aid: from March 21 to May 13, only two people have been permitted to stay in the United States.  Critics of these policies contend that the pandemic has become an excuse for the Trump Administration to tighten immigration control.

[For more information on these pandemic-related policies, read our posts here and here.]

Judge Kelly's ruling blocks the Administration's attempt to undo decades of immigration law; since 1980, the U.S. has allowed those fleeing persecution or violence to at least apply for asylum. Given this, it is expected that the government will file an appeal. Until then, the decision is certainly a cause for celebration for individuals seeking asylum at the southern border. 

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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