"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
People close to Mr. Biden said he had always supported enforcing the law. Some of his top aides, such as Susan E. Rice, who served as his domestic policy adviser until last summer, and Jake Sullivan, his national security adviser, embodied that tough-minded approach.
“Migrants and asylum seekers absolutely should not believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on Day 1,” Ms. Rice had said early on in Mr. Biden’s presidency.
Contrary to these border myths, which the NYT article does not really adequately take on, “the law” requires that individuals be given a chance to apply for asylum regardless of “status” and “entry point.” Congress provided a “quick screening” process called “credible fear” to deal with “mass migration” situations.
Assuming for the sake of argument that “the law” also requires that individuals be “detained” while credible fear screening and adjudication of claims by those who pass takes place, four elements are necessary for the legal system to work in a fair and timely manner.
Humane, NGO-operated reception centers, with on-site representation available, in locations preferably removed from the immediate border for screening to take place;
A huge corps of true expert Asylum Officers to do credible fear screening and outright grant clearly valid cases wherever possible;
A large corps of true expert Immigration Judges and BIA Appellate Judges to guide Asylum Officers, review their work, and, where the case can’t be granted at first instance, conduct timely full adjudication of claims for those who pass credible fear, prioritizing those claims most likely to succeed;
A functional resettlement program for those granted asylum and those whose cases require more in-depth process.
These four steps are the core of what real law enforcement at the border is all about! Prioritize them, accomplish them, and the other pieces will fall in place.
Contrary to Susan Rice, Jake Sullivan, and what the NYT article suggests, a plan to accomplish this 1) isn’t rocket science; 2) does not require legislation; and 3) needed to be “ready to go” with dynamic, courageous, due-process-focused leadership on Day 1 of the Administration or very shortly thereafter.
As always in Government, it’s a question of priorities, courage, and leadership. Despite the “overabundance” of proven, creative legal and administrative talent then in the private sector, most of whom were available to assist Biden, the Administration was not “ready to roll” with this program on Day 1 (as Steven Miller was with his vile “kill asylum and asylum seekers” agenda).
Sadly, even today, the Administration has not come close to putting in place any of these four critical requirements for success. It was highly predictable to any informed expert that forced migrants would continue to arrive at the border in large numbers and that GOP White Nationalists would “leverage” the Administration’s failure to achieve order at the border.
There is something else that’s completely predicable: That, if passed (a big if), the “nativist-driven compromise” now being “debated” by Congress and the Administration will NOT solve the humanitarian issue of forced migration BUT WILL create more death, trauma, and failure at the border and beyond.
Until America elects humanitarian-focused, problem-solving leaders with the vision to regularize fair asylum processing and the courage and skills to implement it, our border will continue to be a godawful mess: Just as GOP White Nationalists want! And, the great opportunity presented by talented asylum seekers who want only to save their and their families’ lives while helping us succeed will be squandered.
Artem Marchuk needed to escape Ukraine or die. He didn’t see any other options.
He and his wife and children had been living in Bakhmut, the site of the war’s deadliest battle. Even when they made it out of the city, nothing in Ukraine felt safe.
“My kids were very hungry,” Artem’s wife, Yana, said in an interview from the family’s home in Baltimore, where the U.S. government resettled them in 2022. “There was darkness everywhere.”
The Marchuks are among more than a million people whom the Biden administration has allowed into the United States over the past three years under an authority called humanitarian parole, which allows people without visas to live and work in the United States temporarily. Parole has been extended to Ukrainians, Afghans and thousands of people south of the U.S.-Mexico border fleeing poverty and war.
Now the program is at the heart of a battle in Congress over legislation that would unlock billions of dollars in military aid for some of President Biden’s top foreign policy priorities, such as Ukraine and Israel.
Republicans want to see a severe crackdown on immigration in exchange for their votes to approve the military aid — and restricting the number of people granted parole is one of their demands.
For Mr. Marchuk, the fact that a program that saved his family has become a bargaining chip on Capitol Hill feels wrong. Although the latest version of the deal would mostly spare Ukrainians seeking parole, he feels a deep sense of solidarity with other people — regardless of their nationality — who may be left behind if Congress imposes limits on the program.
Americans, he said, should welcome people like his family. Mr. Marchuk, a former technology in Ukraine, said he has found work helping other refugees with the advocacy organization Global Refuge, as well as driving for DoorDash, UPS and Amazon since he arrived in Baltimore.
“Refugees deliver these packages,” said Mr. Marchuk, 36. “American citizens who have an education,” he said, very often don’t want to work as drivers.
. . . .
The particulars of the deal in Congress are still being negotiated. A deal that is being discussed in the Senate seeks to reduce parole numbers by tightening immigration enforcement at the southern border.
That would not have a direct impact on the route that many Ukrainians took to America, since they generally do not arrive by the southern border. (Some Ukrainians do make it to the United States that way, however.)
But there is still deep uncertainty about whether the program will survive without changes.
Even some congressional Democrats who oppose substantially changing the parole program have acknowledged they may need to give in to some Republican demands to limit the program if they have any chance of passing the military aid package.
. . . .
As lawmakers debate the merits of the parole program, some immigrants in the United States say all the political talk glosses over the calamities in their home countries.
“People are dying left and right, being kidnapped and it’s just impossible,” said Valerie Laveus, who came to America from Haiti nearly 20 years ago and became a naturalized U.S. citizen in 2008. “I am concerned because I feel like a lot of times these people are having these conversations and they’re forgetting the human factor. They’re forgetting that they’re talking about lives.”
. . . .
Mr. Biden’s allies say restricting use of parole would very likely backfire.
“It means that people in desperate circumstances, who need protection, who need to leave, who need to flee, their options will be more limited, which increases the likelihood they choose the dangerous option of coming to the border,” said Cecilia Muñoz, one of Mr. Biden’s top immigration officials during the transition and co-chair of Welcome.US, an organization that helps Americans sponsor the resettlement of refugees to the United States.
Karoun Demirjian contributed reporting.
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Notably, according to this article, Congress appears ready to carve out a “White Guy Exception” for Ukrainians arriving from Europe. So much for the idea that current immigration policy by both parties isn’t “race driven” — with Hispanics and Blacks generally on the short end of the stick.
By contrast, high level politicos of the Biden Administration and Congressional Dems avoid the border like the plague, except for the few who represent border districts. They are not that much different from GOP nativists. They refuse to engage with border experts, those who have devoted their lives to assisting forced migrants at the border, and the migrants themselves, who certainly will face severe harm, even death, due to the cowardly “sellout” by Congressional Dems and the Administration.
Let’s be very clear about the documented consequences of eliminating asylum at the border:
NEW YORK – With Congress considering codifying additional policies that will trap asylum seekers in Mexico, Human Rights First today reports that it has tracked over 1,300 reports of torture, kidnapping, rape, extortion, and other violent attacks on asylum seekers and migrants stranded in Mexico since the administration’s asylum ban was enacted in May.
Basically, those pushing to appease the GOP White Nationalist restrictionists at the border are knowingly and intentionally advocating for deadly human rights violations! How is that acceptable?
Foreign-born workers consistently have a higher labor market participation rate than native-born workers. https://usafacts.org/articles/how-many-immigrants-are-in-the-american-workforce/. Consequently, there is little reason to doubt that new waves of migration ultimately will benefit the U.S., particularly the many U.S. cities, large and small, in danger of depopulation and “death.” Ironically, many of the localities with the most to gain from robust migration are in “red” states.https://apple.news/AQkO0JQjKS9aXF-V-RD9-_Q
Instead of planning to avoid these “ghost towns,” using the influx of individuals who seek to help us as an opportunity, we’re “strategizing” and spending huge amounts of money expelling, “deterring,” imprisoning, rejecting, dehumanizing, and even killing those who seek refuge!
There are legitimate issues as to how to “front” services for asylum seekers until they can obtain work authorization and find jobs. THIS, is where bipartisan cooperation, creative solutions, and resources could be focused, rather than exclusively on counterproductive and expensive gimmicks to punish, deter, and deny. But, there’s no chance of that!
Instead, in an example of how far the one-sided debate has departed from reality and human decency, Biden now vows to “shut the border” if Congress will only give him the authority! https://www.washingtonpost.com/politics/2024/01/26/biden-vows-shut-down-an-overwhelmed-border-if-senate-deal-passes/. But, that’s apparently not enough cruelty and xenophobia for MAGAMike and his White Nationalist insurrectionists! They seek eradication of the lives and humanity of anybody with the temerity to seek refuge in the U.S.
And so it goes, ever onward and downward. The media has developed amnesia on the well-documented unmitigated disaster and cascade of human suffering that our nation’s most recent border shutdown generated. As stated by expert Aaron Reichlin-Melnick on “X:”
Will the DC press (not those on the immigration beat) continue to ignore the fact that the last time we “shut down the border” under Title 42, it did not work and in fact led to 15 out of 20 of the highest months for border apprehensions in the 21st century?
We don’t know yet who the “winners” of the 2024 election will be, other than traffickers, cartels, exploiters, private prison corporations, undertakers, and body bag makers! But, we already know the “losers:” asylum seekers, Dreamers, human rights, persons of color, and those brave souls who continue to stand up for truth and equal justice for all!
Dem politicos and the Administration seem to be counting on the view that the Trump GOP is so horrible and antithetic to democracy that Dems can afford to dehumanize migrants, ignore their supporters, and break campaign promises without consequences. Just what they are getting in return isn’t obvious. From an immigrants rights’ and humanitarian standpoint, it’s “zilch.”
With Dems supposedly in charge of the Presidency and the the Senate, why are they ready to gift GOP restrictionists with what many have characterized as a “generational chance” to destroy asylum, hamstring legal immigration avenues, and squander even more money on hyper-cruel, race-driven, “sure to fail” border militarization and human rights violations?
Talk about “selling your soul!” That appears to have become the Democrats’ mantra in 2024. Whether it will prove a successful political strategy, remains to be seen!
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
. . . .
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
. . . .
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
The Biden Administration thinks carrying out his policies is A-OK. Many of those who,helped put them in office disagree. Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
WASHINGTON — The Biden administration will expand its use of a public health rule to start expelling to Mexico thousands of Venezuelans who illegally cross the U.S. border and announced a new humanitarian parole program to provide a narrow legal pathway to the United States for up to 24,000 Venezuelans.
The administration hopes that Venezuelans will apply for the parole plan remotely and fly to the United States rather than making the dangerous trek to the southwest border.
But the reliance on a Trump-era pandemic rule to deny entry to many others crystallized the Biden administration’s balancing act in both helping refugees and tightening border restrictions in the face of Republican attacks on President Biden’s immigration policy and record numbers of illegal border crossings. And there is no guarantee that just 27 days before the midterm elections, it will have the desired effect.
Until now, the majority of Venezuelans who crossed into the United States have not been expelled under the public health authority, known as Title 42. Instead, they were screened and released into the country temporarily to face removal proceedings in immigration court, where they have the option to apply for asylum.
. . . .
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In addition to being cruel and illegal, the new policy won’t please anyone on the immigration issue. Biden is selling his erstwhile supporters “down the river,” while neither mollifying critics on the right nor winning over independents.
Expect refugees to suffer and die. I also predict that extralegal entries aiming for “do it yourself” refuge in the interior will increase. And, our immigration and asylum systems will remain a dysfunctional mess.
He had been in office only two months and there was already a crisis at the southwest border. Thousands of migrant children were jammed into unsanitary Border Patrol stations. Republicans were accusing Mr. Biden of flinging open the borders. And his aides were blaming one another.
Facing his bickering staff in the Oval Office that day in late March 2021, Mr. Biden grew so angry at their attempts to duck responsibility that he erupted.
Who do I need to fire, he demanded, to fix this?
Mr. Biden came into office promising to dismantle what he described as the inhumane immigration policies of President Donald J. Trump. But the episode, recounted by several people who attended or were briefed on the meeting, helps explain why that effort remains incomplete: For much of Mr. Biden’s presidency so far, the White House has been divided by furious debates over how — and whether — to proceed in the face of a surge of migrants crossing the southwest border.
. . . .
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Read the complete article at the link.
Not rocket 🚀 science:
Note to Susan Rice & Ron Klain: There will be no racial justice in America without immigrant justice.
Asylum is the law, NOT a “policy option” or a “strategy.”
The Attorney General has an obligation to insist that the law be followed or to resign.
How on earth could anyone think that the border can be fixed without addressing the extreme dysfunction and Trump White Nationalist bias in the Immigration Courts?
How do you run on a promise to restore asylum at the border without having a plan in hand to do that on Inauguration Day?
Ports of entry “reopened” remarkably quickly for White asylum seekers from Ukraine, using cooperation among the DHS, Mexico, and volunteer groups. So, it’s very “doable.” What’s lacking here appears to be the will and the motivation to treat asylum seekers of color fairly and humanely.
Is the Civil Rights Division of the DOJ on permanent LOA? What does Kristen Clarke, AAG for Civil Rights, do to earn her paycheck? Whatever happened to Associate AG Vanita Gupta, a former civil rights and racial justice maven, who has turned her back on America’s most glaring and serious racial justice problems, at the border and in her Department’s dysfunctional “courts,” and disappeared into the bowls of Garland’s bureaucracy, never to be heard from again?
So, following the law and treating persons of color fairly and humanely at our borders will create “chaos” (it should do nothing of the sort, with competent leadership and personnel) and might be “bad politics” for “moderate Dems.” Gimmie a break!
Why not just consider all asylum applicants to be “constructively White persons” and proceed accordingly?
Why is appeasing GOP White Nationalist nativists, who wouldn’t support Biden no matter what he does at the border, more important to the Administration than keeping promises to supporters who actually worked to put Biden, Harris, and, derivatively, folks like Rice, Klain, Mayorkas, and Garland in office?
Repubs do remember who their key supporters are, and act accordingly, even when those actions are illegal, immoral, counterproductive, and often unpopular. Dems, by contrast, are afraid to follow the law and do the right thing to make good on promises to their supporters!
America actually needs more legal immigrants. Many of them are waiting at the border for justice long delayed. Perhaps, an Administration who can’t see that and turn it into a “win-win” doesn’t deserve to be in office.
Miriam Jordan, National Immigration Reporter, NY TimesZolan Kanno-Youngs Reporter, NY Times
Miriam Jordan & Zolan Kanno-Youngs report for The NY Times:
LOS ANGELES — A federal judge on Wednesday ordered the Trump administration to continue accepting asylum claims from all eligible migrants arriving in the United States, temporarily thwarting the president’s latest attempt to stanch the flow of migrants crossing the southern border.
Judge Jon S. Tigar of the United States District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. It would have also affected many migrants from Africa, Asia and other regions.
The decision came on the same day that a federal judge in Washington, hearing a separate challenge, let the new rule stand, briefly delivering the administration a win. But Judge Tigar’s order prevents the rule from being carried out until the legal issues can be debated more fully.
The rule, which has been applied on a limited basis in Texas, requires migrants to apply for and be denied asylum in the first safe country they arrive in on their way to the United States — in many of the current cases, Mexico — before applying for protections here. Because migrants from Honduras, El Salvador and Guatemala make up the vast majority of asylum seekers arriving at the southern border, the policy would virtually terminate asylum there.
“This new rule is likely invalid because it is inconsistent with the existing asylum laws,” Judge Tigar wrote in his ruling on Wednesday, adding that the government’s decision to put it in place was “arbitrary and capricious.”
The government, which is expected to appeal the decision, has said that the rule intends to prevent exploitation of the asylum system by those who unlawfully immigrate to the United States. By clogging the immigration courts with meritless claims, the government argues, these applicants harm asylum seekers with legitimate cases who must wait longer to secure the protection they deserve.
Under the policy, which the administration announced on July 15, only immigrants who have officially lost their bids for asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States.
Hondurans and Salvadorans have to apply for asylum and be denied in Guatemala or Mexico before they become eligible to apply in the United States, and Guatemalans have to apply and be denied in Mexico.
The policy reversed longstanding asylum laws that ensure people can seek safe haven no matter how they got to the United States. On July 16, the day the new rule went into effect — initially in the Rio Grande Valley of Texas — the American Civil Liberties Union challenged the policy in court in San Francisco. The case in Washington was filed separately by two advocacy organizations, the Capital Area Immigrants’ Rights Coalition and Refugee and Immigrant Center for Education and Legal Services, or Raices.
“The court recognized, as it did with the first asylum ban, that the Trump administration was attempting an unlawful end run around asylum protections enacted by Congress,” said Lee Gelernt, the A.C.L.U. lawyer who argued the case in San Francisco.
The groups challenging the rule argued that immigration laws enacted by Congress expressly state that a person is ineligible for asylum only if the applicant is “firmly resettled” in another country before arriving in the United States. The laws also require an asylum seeker to request protection elsewhere only if the United States has entered into an agreement with that country and the applicant was guaranteed a “full and fair procedure” there, they said.
Judge Tigar agreed. “The rule provides none of these protections,” he said in his ruling.
During a hearing in the case on Wednesday, a lawyer for the Justice Department, Scott Stewart, said that a large influx of migrant families had spawned a “crisis” that had become “particularly stark” and created a “strain” on the asylum system.
“Migrants understand the basics of the incentives and are informed about how changes in law and policy can affect their options,” Mr. Stewart told the judge.
Judge Tigar voiced concern about forcing asylum seekers to apply for protection in Mexico or Guatemala. “We don’t see how anyone could read this record and think those are safe countries,” he said, referring to the rule’s language that migrants must apply to the first safe country.
The judge also said that the government did not address the “adequacy of the asylum system in Guatemala,” which is not equipped to handle a surge in applications.
Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said it was inhumane and cruel to force people fleeing violence to seek safety in places that are as dangerous as the homes they fled. “Everyone seeking protection has the right to humane treatment and a fair asylum process under U.S. and international law,” she said.
In federal court in Washington, two advocacy groups made similar arguments against the new policy.
But that judge, Timothy J. Kelly, found that the groups did not sufficiently support their claim that “irreparable harm” would be done to the plaintiffs in the case if the policy were not blocked. While the rule would affect migrants seeking asylum, the judge said, “the plaintiffs before me here are not asylum seekers.”
“They are only two organizations, one of which operates in the D.C. area, far from the southern border,” he added.
In recent years, the number of migrants petitioning for asylum has skyrocketed.
Migrant families and unaccompanied children have been turning themselves in to Border Patrol agents and then requesting asylum, which typically enables them to remain in the United States for years as their cases wind through the backlogged immigration courts. Only about 20 percent of them ultimately win asylum, according to the government, and many of those whose applications are rejected remain in the country unlawfully.
The administration announced the new asylum policy despite the fact that Guatemala and Mexico had not agreed to the plan, which means those countries have made no assurances that they would grant asylum to migrants intending to go to the United States. Talks with Guatemala broke down and the country’s president, Jimmy Morales, backed out of a meeting that had been scheduled for July 15 at the White House. On Wednesday, President Trump said that his administration was considering imposing tariffs on Guatemalan exports or taxing money sent home by migrants.
The new asylum rule is just one of many efforts by the Trump administration to curb the entry of migrants.
At ports of entry, Customs and Border Protection agents have significantly slowed the processing of applicants through metering — limiting how many migrants are processed to as few as a dozen per day.
And some 16,000 migrants are waiting in Mexican border towns like Tijuana under a policy commonly referred to as “Remain in Mexico,” which forces asylum seekers to wait in Mexico until the day of their court hearing. The policy makes it more difficult for the migrants to secure a lawyer to represent them in the United States, undermining their chances of winning protections.
In November, President Trump unveiled a separate policy that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Judge Tigar, who was also hearing that case, issued a temporary restraining order blocking that rule. The case is currently on appeal in the Ninth Circuit.
Zolan Kanno-Youngs reported from Washington, and Miriam Jordan from Los Angeles.
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It’s a much more reasonable order than that issued by Judge Kelly in DC earlier in the day which declared “open season” on asylum seekers. Judge Tigar has been on the front lines of Trump’s war on Due Process and the rule of law. Significantly, he pointed out the absurdity of the Trump Administration’s outrageous scofflaw attempt to classify Guatemala, one of the most dangerous countries in the world, without a functioning asylum system, as a bogus “safe third country.”
