New Developments at Southern Border: Temporary Restraining Order Bars Trump Administration From Changing Asylum Law; Trump Spars With Chief Justice; No Agreement With Mexico Yet
3 December, 2018
U.S. District Judge Jon Tigar, of San Francisco, California, has issued a temporary restraining order blocking President Trump’s presidential proclamation and a new rule preventing certain types of asylum claims along the southern border of the United States. The order will remain in effect until a court hearing on December 19, 2018.
President Trump had issued the presidential proclamation targeting potential mass migration through the southern border of the United States with Mexico in response to reports of a “caravan” of a large number of people primarily from Central America with a stated goal of entering the United States. Several thousand members of the caravan are waiting in Tijuana, Mexico, and more are expected. On November 9, 2018, the Departments of Justice and Homeland Security published a related interim final rule limiting asylum claims, and the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services released guidance. The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights, and other groups immediately sued, claiming that the proclamation and rule violated asylum applicants’ rights.
The court agreed: “The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the [Immigration and Nationality Act] and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” The court also said that the government offered nothing in support of the new rule that outweighed the need to avoid harm to potential asylum seekers, including increased risk of violence and other harms at the border. Among other things, the court also noted that “the application of the Rule will result in the denial of meritorious claims for asylum that would otherwise have been granted. That means that persons who are being persecuted on the basis of their religion, race, or other qualifying characteristic, to whom the United States would otherwise have offered refuge, will be forced to return to the site of their persecution.”
After the ruling, President Trump said, “This was an Obama judge, and I’ll tell you what, it’s not going to happen like this anymore. Everybody that wants to sue the U.S.—almost—they file their case in the Ninth Circuit, and it means an automatic loss. No matter what you do, no matter how good your case is. And the Ninth Circuit is really something we have to take a look at, because it’s not fair.” In an unusual move, John Roberts, Chief Justice of the U.S. Supreme Court, admonished President Trump for referring to Judge Tigar as an “Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
On November 24, 2018, President Trump tweeted, “Migrants at the Southern Border will not be allowed into the United States until their claims are individually approved in court. We only will allow those who come into our Country legally. Other than that our very strong policy is Catch and Detain. No ‘Releasing’ into the U.S.”
Initial reports following the court’s order said that Mexican officials had agreed to hold migrants in Mexico while their asylum claims were processed in the United States. But the incoming foreign minister, Marcelo Ebrard, reportedly said the United States had not yet sent a “specific proposal” and that such an agreement had not been reached. The new president of Mexico, Andres Manuel Lopez Obrador, took office on December 1, 2018. Reportedly, he hopes to negotiate an agreement with the United States to contain Central American migration in exchange for U.S. aid to the region.
Meanwhile, many migrants moved to a new border shelter in the Tijuana, Mexico, area near the U.S. border, where thousands have congregated, while others decided to return home. Some said they would look for work in Mexico. A group of several hundred reportedly attempted to rush the border but were turned back by U.S. border agents.
The temporary restraining order is at