The court held, “As the Court previously stated when denying Defendants’ motion for stay, where ‘Congress unambiguously stated that manner of entry has no effect on an alien’s ability to apply for asylum,’ Defendants cannot plausibly contend that ‘it can be the sole factor by which the alien is rendered ineligible.” It’s stunning that the administration attempted to change a statute on the books unilaterally and without notice. This was pure lawlessness.
The court explained:
There is undoubtedly also a substantial public interest in preventing the unnecessary deaths of asylum seekers who attempt to cross between ports of entry. Though Defendants do not cite the administrative record, their extra-record evidence demonstrates that deaths at the border are a serious, longstanding, and ongoing problem. ... Further, the administrative record highlights that the dangers faced by asylum seekers begin far from the U.S. border. ... “The violence experienced by the population of the [Northern Triangle of Central America] is not unlike that of individuals living through war.”). But Defendants have not shown that the Rule actually addresses these problems. And even if it did so in some small measure, that would not justify the usurpation of Congressional authority.
In a statement commending the ruling, the lawyer who argued the case for the American Civil Liberties Union wrote: “The court has once again made clear that the Trump administration cannot do an end-run around the decision by Congress to provide protection to vulnerable individuals regardless of where they seek asylum. This ruling will save lives.”
The ruling is the latest step in a lawsuit that was begun in November, when the court issued a temporary restraining order, a decision upheld by the 9th Circuit.
The decision comes on the same day as a ruling by Judge Emmet Sullivan (yup, the same one who slapped down Michael Flynn) in the District of Columbia. Sullivan held in a case testing a decision by then-Attorney General Jeff Sessions eliminating gang-related or sexual violence as grounds for asylum that “the United States broke the law in deporting asylum-seekers without determining whether they have a credible fear of persecution in their home country.” In a report on the highlights of a 107-page decision, we can detect Sullivan’s irritation at the administration’s lawlessness:
[Individualized asylum] interviews are guaranteed by the Immigration and Nationality Act, and Sullivan found “no legal basis for an effective categorical ban” on such claims.
"Because it is the will of Congress — not the whims of the executive — that determines the standard for expedited removal, the court finds that those policies are unlawful,” Sullivan wrote.
The plaintiffs include women who sought U.S. asylum for themselves and their children after fleeing domestic violence and gang brutality in their home countries. ...
“Credible fear determinations, like requests for asylum in general, must be resolved based on the particular facts and circumstances of each case,” he wrote. “The attorney general’s direction to deny most domestic violence or gang violence claims at the credible fear determination stage is fundamentally inconsistent with the threshold screening standard that Congress established: an alien’s removal may not be expedited if there is a ‘significant possibility’ that the alien could establish eligibility for asylum.”
It seems like just yesterday that right-wing groups and individuals were excoriating President Barack Obama for acting unilaterally in issuing protection for “dreamers” after Congress refused to act. (Some of us opposed Obama acting without Congress, just as we now deplore Trump acting in violation of existing law. Intellectual consistency has its advantages.) The partisan hypocrisy would be comical, if the results of Trump’s actions were not so tragic.
In sum, in its never-ending search for red meat to fling at its xenophobic base, the administration has come up with one cruel, unconstitutional gimmick after another (e.g. depriving “sanctuary cities” of funding, writing out of existence certain types of claims, barring asylum consideration for those crossing the southern border). Its disdain for constitutional niceties — the executive branch must enforce the laws on the books, not decide unilaterally to ignore or change them — is matched only by its contempt for the safety and well-being of desperate human beings. And the Republicans who have declared themselves to be “constitutional conservatives”? Nowhere to be found.