Pens and phones, once established as precedent, tend to persist. The Trump administration got a perhaps surprising win in federal court earlier today on its decision to impose a de facto “safe third country” policy on asylum regardless of whether an agreement exists for that purpose. Judge Timothy Kelly declined to issue an injunction against the policy change, which will deny asylum in almost all cases where an applicant comes through another country to claim asylum in the US:
In a ruling issued from the bench, Kelly said the plaintiffs had not proved they would suffer “irreparable harm” as a result of the asylum ban. While Kelly acknowledged the policy could have “far-reaching and significant effects,“ he found that plaintiffs failed to demonstrate sufficient harms to halt the regulation.
The decision provides a short-term win for President Donald Trump, who has sought to diminish the flow of Central American migrants arriving at the border by toughening the asylum process. The administration issued a fast-track regulation last week that bars asylum for migrants who pass through other nations and do not seek refuge in those places.
Until now, this “safe third country” practice had been limited to countries with which we have reciprocal diplomatic agreements to that effect. We have that with Canada, for instance, but not with Mexico, although Trump demanded if Mexico couldn’t stop the deluge of migrants transiting their country. Using tariffs as leverage, Trump backed Mexico into a corner and forced them to start taking border security seriously.
Without the diplomatic commitment, though, one might have expected the court to have a knee-jerk reaction to a sudden and significant change in asylum practice, at least without some authorization from Congress. It wouldn’t be necessary to strike down the policy change, but a temporary injunction could easily have been expected, especially with the track record of such challenges to Trump’s other immigration-policy efforts, like the so-called “travel ban” attempts in 2017. Kelly appears to have avoided such a move by focusing on standing more than the policy:
The groups had asked the court to find that Congress did not intend that mere transit through another country would render an applicant ineligible for asylum in the United States, and to rule that the policy did not comply with required procedural steps. Judge Kelly, however, disputed the plaintiffs’ contention that Attorney General William P. Barr overstepped legal requirements when issuing the rule.
“I think at this point, the plaintiffs are reading too strictly a limitation on the Attorney General’s authority,” Judge Kelly said.
He also found that the two advocacy organizations did not provide sufficient support for the contention that there would be “irreparable harm” to the plaintiffs in the case if an immediate, temporary block to the policy were not imposed. While the rule would impact migrants seeking asylum, “The plaintiffs before me here are not asylum seekers,” the judge said.
“They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he said.
It’s worth noting that Kelly is a Trump appointee, but not a Trump rubber stamp. It was Judge Kelly that ordered the Trump administration to restore Jim Acosta’s access to the White House, not exactly a popular decision there. However, while Kelly stayed away from the merits of the underlying challenge at this stage, he did note that when that time comes, the “severely strained” immigration system would be one key aspect of his deliberations. That has to be welcome news in the West Wing.
Don’t expect Kelly to get the last word on an injunction. Other plaintiffs will likely look for friendlier turf — Hawaii, anyone? — to get a more favorable temporary outcome. By this time, we all know the playbook.
Update: It’s not Hawaii, but it is the 9th Circuit’s turf:
A federal judge granted a preliminary injunction against the Trump administration’s latest move to widely restrict asylum for migrants coming to the southern border, according to court documents.
U.S. District Judge Jon Tigar in California issued the preliminary injunction blocking the new asylum restrictions Wednesday afternoon, just hours after a hearing where he grilled a government attorney over the new sweeping change to asylum policy.
The policy, announced by the Trump administration last week, would broadly end asylum eligibility for migrants who pass through another country on their journey to the United States’ southern border with Mexico but do not attempt to seek the protection in those other countries first.
So … here we go.