The Trump administration issued the new rule as a large caravan of Central American migrants was headed to the border and the president continued to fume about the thousands of families crossing into the United States each month.
The migrants say they are fleeing violence and poverty at home. But Justice Department lawyer Scott Stewart told U.S. District Judge Jon S. Tigar there is a “crushing strain” of migrants attempting to cross the border illegally and asking for asylum as a way to stay indefinitely. He said most asylum claims are “ultimately meritless.”
Tigar questioned the administration’s account, noting that border apprehensions are near historic lows and that federal law says anyone on U.S. soil can apply for asylum — regardless of how they got there.
“What’s left of that expression of congressional intent?” the judge asked.
Lee Gelernt, a lawyer with the American Civil Liberties Union, said the administration is overstepping its authority. He called the dispute “a classic separation-of-powers case.”
“Every day we are learning about individuals who are in serious danger, individuals who have very strong asylum claims who are not being allowed to apply for asylum,” said Gelernt, one of the attorneys representing advocacy groups in the lawsuit.
Federal officials have said the president has broad powers to protect the borders and national security. When he announced the asylum rules this month, Trump invoked the same authority that ultimately allowed him to impose a travel ban on migrants from mostly Muslim-majority nations. After earlier versions were blocked in court, the Supreme Court upheld a modified version of the ban by a 5-to-4 vote in June.
In court filings, the plaintiffs said the U.S. Border Patrol apprehended 1.25 million fewer people at the U.S.-Mexico border in fiscal 2018 than it did in fiscal 2000. But the ACLU acknowledged in court that a fairly small fraction of the thousands of asylum claims filed in recent years have actually been granted.
To Stewart, these numbers illustrate that large number of immigrants are abusing the asylum system and that the new rule is needed to discourage people from crossing unlawfully.
“It’s true that the rule will discourage people from entering the country to make asylum claims,” Tigar said to Stewart. “But how does that make it more likely that the claims that are presented will be meritorious?”
“The rule encourages people with strong claims to follow the process,” Stewart said.
Tigar also asked whether legal ports of entry had adequate staffing. “Are ports of entry capable of processing additional asylum seekers, or are they backed up?”
Stewart answered that resources could be shifted, “and presumably the process could be faster.”
He sought to reassure the judge that those who cross the border illegally could still seek protection, just not the permanent refuge and U.S. citizenship that asylum provides.
“A theme in the ACLU’s briefing is that this returns people to persecutors and torturers,” Stewart said. “It does no such thing.”
Tigar asked whether the effect of the new rule “might be some persons who are subject to torture . . . won’t get relief?”
The ACLU and others say in the lawsuit that the administration violated the Immigration and Nationality Act and the Administrative Procedure Act by swiftly pushing through the new rules.
“If this rule stays in effect, people are going to die,” Melissa Crow, senior supervising attorney with the Southern Poverty Law Center, said after the hearing. “There are going to be people who fall through the cracks in our system.”
In the lawsuit, advocates say migrants “cannot reasonably” go to a legal checkpoint because many do not know they even exist or how to find them along the 2,000-mile border.
Even at legal checkpoints, advocates allege, border officials are increasingly turning migrants away or forcing them to wait in long lines. The nation’s biggest border crossing — in California at San Ysidro, across from Tijuana — was closed Monday for several hours.
Department of Homeland Security officials said 6,000 people in Tijuana are waiting to enter the United States, with another 1,600 more than 100 miles east in the border city of Mexicali. In all, 8,500 to 10,500 people are at the border or en route.
In a separate legal action Monday, ACLU lawyers asked a federal judge in Washington to block the government from enforcing a June opinion by then-Attorney General Jeff Sessions that said foreigners generally will not be eligible for asylum based on domestic abuse or gang violence.
The lawsuit also asks the judge to allow migrants to return to the United States if they were deported because of the new rules.
U.S. District Judge Emmet G. Sullivan did not say how or when he would rule, taking the issue under advisement. Sullivan in August temporarily blocked the deportation of 12 immigrants represented by the ACLU in the case. On Monday, he signaled that he was open to a wider, more permanent ban.
At a hearing this summer, Sullivan ordered the U.S. government to “turn that plane around” when he learned that it was deporting a mother and her daughter even as her lawyers were arguing in court in her behalf.
Trump administration officials say the rising number of families crossing the border is a smuggling tactic that migrants use to gain entry into the United States because of legal limits on how long the federal government can detain children.
Despite Trump’s pledge to halt illegal immigration, his administration has been forced to release thousands of families to await deportation hearings, which can take months or years in the backlogged immigration courts.
Ackerman is a freelance reporter based in Oakland, Calif. Sacchetti reported from Washington. Spencer S. Hsu contributed to this report.