Key Takeaways on Asylum Ban and Treatment of Asylum Seekers at the Southern Border

Key Takeaways on Asylum Ban and Treatment of Asylum Seekers at the Southern Border

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Current Status of the “Asylum Ban”

  • In a ruling on Monday, November 19, 2018, Judge Jon S. Tigar of the U.S. District Court in San Francisco temporarily blocked the Trump administration from denying asylum to migrants who cross the southern border into the United States without inspection, saying the policy likely violated federal law on asylum eligibility.
  • The asylum ban was issued on November 9, though the White House had as early as last month floated drastic changes to the way the United States affords protection to people fleeing persecution in their home countries.
  • The asylum ban would allow only people who cross at legal checkpoints on the southern border to request asylum, while those entering elsewhere would be able to seek different forms of protection that are harder to win and offer fewer benefits.
  • Judge Tigar’s order remains in effect until December 19, at which point the court will consider arguments for a permanent order.
  • The injunction reflects the judge’s conclusion that the plaintiffs are likely to succeed on the merits of the case
  • Judge Tigar said the president could not change asylum law by executive fiat. “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” he wrote.
  • Judge Tigar reasoned that the “failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process.”
  • The judge determined that the changes proclaimed and ordered by the Trump administration would amount to a transformation of long-established asylum procedures, codified both at the international level and by Congress.
  • As the government sought to show that the ban was necessary and lawful, the judge seemed skeptical, observing that border apprehensions are near historic lows and that, regardless, federal law says all people on or arriving to U.S. soil can apply for asylum, no matter their manner of arrival or entry.
  • Judge Tigar voiced concern for the fate of asylum seekers under the changes. The administration’s rule, he observed, would force individuals “to choose between violence at the border, violence at home, or giving up a pathway to refugee status.”
  • Judge Tigar wrote that the government’s argument that the manner of entry can be the lone factor rendering a migrant ineligible for asylum “strains credulity.”
  • Judge Tigar reasoned that the “interpretive guide” of the U.N. Refugee Convention lent extra force to congressional requirements. The intent of Congress, Tigar wrote, was “unambiguous.”
  • Judge Tigar stated “And if what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also.”


Source: AILA Doc. No. 18111372.

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