A federal judge blocked President Trump’s new asylum crackdown policy early Tuesday, ruling that federal law allows anyone — including illegal immigrants who jumped the border — to demand protections once they reach U.S. soil.
The decision is a major dent to the administration’s efforts to derail the migrant caravan camped out on the U.S.-Mexico border, undercutting Homeland Security’s efforts to funnel those people to the legal border crossings.
Under U.S. District Judge Jon S. Tigar’s ruling, they can demand asylum no matter how they enter, and even if they don’t have a real claim, which the administration fears will restore the enticement to attempt to sneak in.
Judge Tigar, an Obama appointee to the federal court in the Northern District of California, blocked a rule Homeland Security Secretary Kirstjen Nielsen and then-Attorney General Jeff Sessions issued just weeks ago that had said illegal immigrants caught after jumping the southwest border would not be allowed to make asylum claims.
The judge ruled that contradicted the Immigration and Nationality Act, which he said clearly gives even illegal immigrants a pathway to claim asylum.
“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Judge Tigar ruled.
Spokespersons for Homeland Security and the Justice Department defended their policy, saying Congress has granted the president broad powers to control who enters the U.S., and they believe the asylum changes were within those powers.
“It is lawful and appropriate that this discretionary benefit not be given to those who violate a lawful and tailored presidential proclamation aimed at controlling immigration in the national interest,” the spokespersons said.
They said Judge Tigar also erred in allowing the lawsuit to be brought by the American Civil Liberties Union and other immigrant-rights organizations, saying none of them was personally harmed by the asylum changes.
The groups had argued — and the judge agreed — that they suffered because they had to adapt their own missions.
Judge Tigar’s ruling this week was a one-month temporary restraining order, which he said will give both sides a chance to expand their legal arguments.
It’s the latest blow to Mr. Trump’s immigration policy — but this one could be particularly damaging, coming just as the caravans of migrants from Central America reach the U.S. doorstep.
Homeland Security officials say some 10,500 migrants are camped along the border and on Monday the country’s busiest land border crossing had to be hardened with new razor wire and barriers to try to prevent what authorities feared would be a mass incursion, similar to the violent entrance the migrants into Mexico last month.
Some caravan members have told reporters they plan to ask for asylum in the U.S., saying they’re fleeing domestic abuse or lack of jobs back home.
But they have refused Mexico’s offers of asylum and their claims sound more like those of traditional illegal immigrants than of asylum-seekers, who are supposed to be fleeing government persecution because of race, religion, political beliefs or something along those lines.
Instead, it appears many of the caravan’s members are counting on being able to exploit the asylum system to make unsubstantiated claims, then use them to gain a foothold in the U.S. where they will disappear into the shadows with the 11 million other illegal immigrants already here.
Homeland Security officials say only 10 percent of Central American migrants who initially suggest they’re eligible for asylum will eventually be approved by a judge.
But of the Central American families and children who entered in 2017 — the population most likely to claim asylum — less than 2 percent have been deported.
Immigrant-rights advocates counter that the U.S. system is set up to offer generous protections and the country can handle the influx.
The American Civil Liberties Union, which led the fight against the policy, said people would have been put in danger if they were denied their opportunities under the law.
“There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades,” said Lee Gelernt, the ACLU lawyer who argued the case.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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