Federal Court Strikes Down
Trump Asylum Ban
Trump Asylum Ban
Wednesday, July 1, 2020
A Trump-appointed federal district judge in Washington, DC has issued an opinion striking down a Trump Administration rule requiring migrants seeking to enter the United States to first seek asylum in countries they travel through on their way. Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia issued his order and its accompanying opinion late in the evening on Tuesday. June 30, 2020, concluding that the ban failed to comply with the Administrative Procedure Act (APA) governing how agencies should implement rules. The Administration had issued the ban in July of 2019 in an effort to prevent Central American migrants fleeing violence in their countries from seeking asylum in the United States,
The ban that was the subject of the Judge's ruling was promulgated in an interim final rule, published on July 16, 2019, by the Department of Justice and Department of Homeland Security, .governing asylum claims in the context of aliens who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited en route to the United States. The rule has essentially forced asylum-seeking migrants from Honduras, Guatemala and El Salvador to first seek it from Mexico before seeking asylum in the United States.
After the rule was published, three organizations, Human Rights First, Capital Area Immigrants’ Rights Coalition (“CAIR Coalition”), and Refugee and Immigrant Center for Education and Legal Services Inc. (RAICES), filed a suit on behalf of themselves and nine asylum seekers, challenging the ban and seeking to protect the rights of asylum seekers.
“Defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements,” Kelly wrote in his opinion, concluding that the Court didn’t need to rule on other claims about the validity of the rule to vacate it.
In addition to striking down the rule because it violated the APA, Judge Kelly also denied the government's request to stay his order pending appeal, meaning he has blocked a policy that would have automatically denied asylum to a population of migrants that the U.S. had long allowed to at least file asylum applications once they reached U.S. soil.
Judge Kelly's ruling appears to clash with the Supreme Court of the United States, which in September of 2019 issued an opinion permitting the asylum ban to go into effect while challenges over its legality are being litigated in the Ninth Circuit Court of Appeals. However, it is consistent with several recent Supreme Court precedents with respect to the Administration's rulemaking. Last year, the Supreme Court ruled that the Administration’s effort to add a citizenship question to the 2020 census violated the APA because of what it said was the faulty reason officials cited for the decision. And late last month, the Court stopped the Administration from rescinding the DACA program because it failed to follow the APA.
On its face, it would appear that unless the Administration appeals the ruling and obtains a stay of it, pending appeal, the Administration will have to permit Central American asylum seekers to enter the United States and seek asylum until it completes a new rulemaking process that complies with the APA. However, the Administration has taken a number of other overlapping actions and implemented a number of overlapping policies with respect to the border and asylum that have effectively sealed the U.S. border.to asylum seekers.
“Defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements,” Kelly wrote in his opinion, concluding that the Court didn’t need to rule on other claims about the validity of the rule to vacate it.
In addition to striking down the rule because it violated the APA, Judge Kelly also denied the government's request to stay his order pending appeal, meaning he has blocked a policy that would have automatically denied asylum to a population of migrants that the U.S. had long allowed to at least file asylum applications once they reached U.S. soil.
Judge Kelly's ruling appears to clash with the Supreme Court of the United States, which in September of 2019 issued an opinion permitting the asylum ban to go into effect while challenges over its legality are being litigated in the Ninth Circuit Court of Appeals. However, it is consistent with several recent Supreme Court precedents with respect to the Administration's rulemaking. Last year, the Supreme Court ruled that the Administration’s effort to add a citizenship question to the 2020 census violated the APA because of what it said was the faulty reason officials cited for the decision. And late last month, the Court stopped the Administration from rescinding the DACA program because it failed to follow the APA.
On its face, it would appear that unless the Administration appeals the ruling and obtains a stay of it, pending appeal, the Administration will have to permit Central American asylum seekers to enter the United States and seek asylum until it completes a new rulemaking process that complies with the APA. However, the Administration has taken a number of other overlapping actions and implemented a number of overlapping policies with respect to the border and asylum that have effectively sealed the U.S. border.to asylum seekers.
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