Requiring migrants to file for asylum in other countries first would likely have meant almost anyone crossing the southern border into the United States for purposes of asylum would have been turned away, with the exception of Mexican citizens or those who could demonstrate a specific fear of persecution in Mexico.
Most asylum seekers arriving at the U.S. border are from Central America, and most migrant families are swiftly released into the United States because of legal limits on how long the government can detain children, something that has vexed President Trump and has thwarted his campaign promises to stop the influx of migrants.
The policy announced earlier this month — like other immigration policies the Trump administration has pursued — aimed to shift the burden of migration to other countries, arguing migrants fleeing persecution should not be able to seek out their preferred destination but rather the first destination that provides them safety.
Lawyers challenging the policy went to federal courts in California and the District, hoping venues traditionally friendly to those taking on the Trump administration would also stop this new approach. A federal judge in the District declined to put a halt to the policy, but a federal judge in California did.
“The tyranny of a dysfunctional system that permits plaintiffs to forum shop to find a single district judge who will purport to dictate immigration policy to the entire Nation — even in the face of a contrary ruling by another federal court — must come to an end,” White House press secretary Stephanie Grisham said in a statement. “We intend to pursue all available options to address this meritless ruling and to defend this Nation’s borders.”
Justice Department officials did not immediately respond to requests for information about the next steps in the case. Lawyers say the Trump administration must first ask U.S. District Judge Jon S. Tigar in the Northern District of California to stay his own ruling, then the administration could appeal to the U.S. Court of Appeals for the 9th Circuit.
Tigar appeared to indicate that staying his own ruling would be unlikely. In his ruling, he wrote the Trump administration’s policy “purports to offer asylum seekers a safe and effective alternative via other countries’ refugee processes,” but he said the government offered no evidence that other countries have a comprehensive asylum system. To the contrary, he said applicants who are sent back to Mexico are likely to be exposed to “violence and abuse from third parties and government officials,” that their rights are often denied and that they are “wrongly” deported to the nations they fled.
The Justice Department could ask the U.S. Supreme Court to lift Tigar’s stay, a tactic the Trump administration tried last year with another attempt to thwart asylum claims. That effort ended badly for the administration, with a rare public spat between a sitting president and the chief justice over judicial independence.
Trump lashed out at Tigar after that ruling, calling him an “Obama judge” and vowing to win the case in the Supreme Court.
The Supreme Court, which has a majority of Republican appointees, voted 5 to 4 to reject the Trump administration’s request to lift the stay. The high court did not explain its decision, which is often the case with procedural matters.
Chief Justice John G. Roberts Jr., a conservative nominated by President George W. Bush, sided with the court’s four liberals and blasted Trump for attacking Tigar.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement at that time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The president responded: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an ‘independent judiciary’ . . . ”
Tigar echoed Roberts’ sentiment at a court hearing in San Francisco hours before he halted the new asylum policy Wednesday. He abruptly stopped court proceedings when he heard someone “hiss” while Justice Department lawyer Scott Stewart argued his case.
“Hold on just a moment,” Tigar said in court. “The dignity of the court is one of the things that gives it its authority.”
He also said he respected U.S. District Judge Timothy J. Kelly, a Trump appointee who earlier in the day denied a similar request to halt the policy.
“My ruling is not binding on him just as his ruling is not binding on me,” Tigar, an Obama appointee, said, adding: “We have the appellate courts to sort this out for us.”
Trump appointed Kelly in 2017. Kelly is a former staff lawyer for Sen. Charles E. Grassley (R-Iowa), a longtime critic of illegal immigration. Trump called the D.C. decision a victory, telling reporters outside the White House the decision “helps us very much at the border.”
“So the asylum is a very big ruling. That was a tremendous ruling today,” Trump said. “We appreciate it. We respect the courts very much.”
Despite Trump’s criticism of the U.S. Court of Appeals for the 9th Circuit, which covers much of the West Coast and has been the forum for most of the major challenges to his immigration policies, he has had some success there.
U.S. District Judge Richard Seeborg, also in San Francisco, in April halted the government’s “Remain in Mexico” policy, which requires migrants to await their U.S. immigration court hearings in that country. A three-judge panel on the appeals court in May, however, allowed the program, known as the Migrant Protection Protocols (MPP) program, to stay in effect while the court considers its legal merits.
Tigar’s ruling, which indicated asylum seekers who are returned to Mexico face serious dangers and threats to their civil rights, aligns with arguments lawyers have made against the MPP program.
American Civil Liberties Union lawyer Lee Gelernt, who argued the case on behalf of several nonprofit organizations in Tigar’s courtroom Wednesday, said the latest asylum policy attempt is a major Trump initiative, “potentially the biggest thing he’s done.”
“This would be the end of asylum,” Gelernt said. “It’s hard to overstate how much is at stake with asylum ban 2.0. Everyone comes through another country . . . If this is upheld, it basically means no more asylum at the southern border.”
One of Trump’s top immigration officials criticized the ruling on Twitter.
“Bad decision out of California yesterday,” Ken Cuccinelli, who serves as acting director of Citizenship and Immigration Services and oversees the nation’s asylum officers, said on Twitter. “Fully support @realdonaldtrump decision to pursue all available options to address the meritless ruling and to defend this Nation’s borders!”
Robert Barnes contributed to this report.