Denise Cathey/The Brownsville Herald via AP
The migrant encampment in Matamoros, Mexico, where many asylum seekers await a U.S. hearing
Late Tuesday night, a federal judge in Washington, D.C., ruled that the Trump administration’s third-country transit ban violates the Administrative Procedure Act (APA), thereby striking down one of the administration’s most draconian asylum rules. The rule said that if an asylum seeker traveled through any other country that accepted asylum seekers while en route to the United States, that individual must first seek asylum there before making a case in the U.S.
Judge Timothy Kelly of the U.S. District Court for the District of Columbia, a Trump appointee, wrote that the government issued the rule “without observance of procedure required by law.” Kelly also noted that neither “good cause” nor “foreign affairs function,” the reasons given for the rule, were satisfied in the government’s case.
Implemented July 16, 2019, the rule prohibited applicants from seeking asylum in the U.S. if they had passed through a third country—effectively barring all Central American asylum seekers and hundreds if not thousands of African asylum seekers who take a similar overland route through Mexico to reach the United States’ southern border.
“The asylum rule thus operated as a virtual ban on asylum at the southern border, regardless of how meritorious a person’s asylum claim was,” Human Rights First, one of the organizations which, along with nine asylum seekers, had brought the suit, said in a statement. “Many thousands of individuals who entered the country while this rule was in effect will now have the opportunity, for the first time, to have their asylum claims adjudicated.”
The ruling comes just a week after another high-profile immigration-related loss for the administration at the Supreme Court, where the justices ruled in a 5-4 decision that the administration violated the APA in ending the Deferred Action for Childhood Arrivals program. DACA protected from deportation nearly 800,000 immigrants who arrived in the U.S. as children, and its abrupt end would have put them in jeopardy. The administration could still end the program, but would likely need to adhere more closely to the administrative requirements for ending such a program. The administration is likely to appeal the ruling.
In both these cases, the administration lost essentially because it moved too quickly and carelessly in making its case, a mistake that compelled even conservative judges to reverse its orders.
Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA, said that despite the administration’s pandemic-related asylum bans, this ruling is still important for thousands of asylum seekers. “There are people who entered after July and still have pending cases … so this is game-changing for them,” she said, noting that asylum has a lower burden of proof than immigration and allows asylum seekers to include their families. There are hundreds of families currently in family detention centers, she said, and one of the main reasons for their prolonged detention is the impact of the third-country ban.
The administration’s transit ban was originally presented as a “safe third country agreement,” which is not an uncommon kind of international pact. In fact, the U.S. still has such agreements with Guatemala, Honduras, and El Salvador—though the latter two are not yet in effect and have largely been put on hold during the pandemic. Advocates argue that the transit ban, despite being presented as such an agreement, operates under a false premise because the countries asylum seekers frequently pass through en route to the U.S. don’t meet the “safe” requirements of international law for such an agreement.
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Advocates also say that despite Tuesday’s ruling, other anti-asylum rules implemented during the COVID-19 pandemic have made this win less important.
“This ruling reiterates the unlawful nature of the administration’s asylum bans, including the current illegal expulsions at the border,” says Daniella Burgi-Palomino, co-director of the Latin America Working Group. “The reality is that the Trump administration has stopped at nothing to close the border to asylum seekers, weaponizing a global pandemic to expel tens of thousands, including unaccompanied children, without due process or a day in court.”
According to The Washington Post, these strict asylum limitations implemented during the pandemic have meant that between March 21 and May 13, “just two people seeking humanitarian protection at the southern border” were allowed to stay in the U.S. One rule hastily deports children, who are normally allowed to remain in the U.S. while their claims are adjudicated, while another rule bans individuals who may be carrying an infectious disease from entering at land border crossings—where most asylum seekers launch their claims.
Burgi-Palomino also expressed concerns about another proposed asylum rule that, if implemented, could also deny asylum to those who crossed through another country en route to the U.S. Krishnaswami explained that this rule includes a provision that would make applying for asylum in the U.S. much harder if the individual had spent more than 14 days in any other country that accepted asylum seekers. In addition, “transit through more than one country prior to arrival” would be “a significant adverse factor.” This rule has yet to be officially promulgated; the public comment period ends this month.
In both these cases, the administration lost essentially because it moved too quickly and carelessly.
In addition, last week the Supreme Court ruled 7-2 that some asylum seekers could be fast-tracked for deportation. It ruled that some individuals who fail to make a valid asylum case in their initial screenings can be deported without additional court hearings.
The administration’s goals of ending asylum, lowering yearly refugee admissions to a cap of just 18,000, and dramatically lowering the levels of immigration as well are all overseen by White House adviser Stephen Miller. And the latest rules come on top of the administration’s virtual immigration bans, such as the Migrant Protection Protocols (MPP), which allowed the U.S. to send nearly 60,000 asylum seekers back to Mexico while they await their court hearings. Under the guise of pandemic protections, Trump also issued an executive order suspending immigration this month.
But Trump and Miller’s nativist zeal may be a factor in the administration’s recent court setbacks. The speed and sloppiness with which these rules were drafted led to language that failed to pass legal muster. Trump governs by impulse, and impulse may not be enough to convince even judges whom Trump has put on the bench.
