Stop me if you’ve heard this one before. The President issues a new rule regarding immigration policy and a judge blocks it. Sound familiar? This time it was Judge Jon Tigar, an Obama appointee and Berkley Law graduate who sits on the (wait for it…) U.S. District Court for the Northern District of California in San Francisco, falling under the Ninth District. I’ll give you a moment to recover from the shock of that revelation.
This has to do with the new order concerning asylum requests from individuals who entered the country illegally rather than making their case at an official port of entry. No sooner had the White House announced their intention to reject most requests from illegal aliens than lawsuits were filed. The judge apparently spent less time deciding this than picking out which robe to wear that day. (CNN)
A federal judge on Monday issued a temporary restraining order blocking the Trump administration from denying asylum claims to immigrants who cross the US-Mexico border illegally.
US District Judge Jon Tigar in San Francisco issued the order to take effect immediately, and it will remain in effect until December 19, 2018.
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar wrote in the order.
The President is basing his claim on the same broad executive branch powers over immigration policy that the Supreme Court upheld in the travel ban case. But since we’re dealing with asylum requests here, there are additional wrinkles to the story that will have to be ironed out. The judge is absolutely correct as to the letter of the law, which you can find in Title 8, Chapter 12. It reads as follows:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
There are some exceptions, but none of them would apply to caravan members who have recently arrived (within the last year), jumped the border and have never applied for asylum before. But notice the key phrase in that law. “…may apply for asylum in accordance with this section.”
Yes, you can apply. But that doesn’t mean asylum will be granted. The details of federal law governing asylum applications and inspection of incoming aliens grant considerable discretion to both the Attorney General and the asylum officer as to who qualifies and who will be accepted. Whether or not there’s enough of a difference here that the Supremes might see this one differently than the travel ban case is hard to say. But as long as the SCOTUS justices continue to view immigration policy as an area where the President generally gets the benefit of the doubt, this decision has at least a reasonable chance of being swatted down also.