Immigration: District Court Issues Restraining Order on Trump Effort to Limit Asylum

By Michael Bournas-Ney

“Asylum” in the United States is a legal protection extended to foreign nationals already in the country or at the border who have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. On November 9, 2018, the Departments of Justice and Homeland Security published a Rule that placed an additional restriction on the right of asylum, namely that an asylum seeker would be ineligible for asylum if he or she entered the country in violation of a presidential Proclamation issued on or after that date. On the same day, President Trump issued a proclamation that suspended for 90 days the right of asylum seekers to enter the country across the U.S.-Mexico border except through officially designated ports of entry. Taken together, the effect of this Rule and Proclamation (collectively “the Rule”) makes asylum seekers entering the United States across its southern border, except through the designated ports of entry, ineligible for asylum status.

In response, various social service and legal organizations that assist immigrants – specifically, East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles – filed a federal lawsuit in United States District Court (Northern District of California) against President Trump and others to seek a Temporary Restraining Order (TRO) to prevent the Rule from taking effect. The lawsuit was filed both on behalf of these organizations as well as their clients. On November 19, 2018, District Court Judge Jon S. Tigar issued a lengthy decision in which he scheduled a hearing on this matter for December 19, 2018, and imposed a nationwide TRO pending that hearing.

In granting the TRO, Judge Tigar reached two core conclusions. He found that plaintiffs: 1) are likely to win on the merits of the case; and 2) would suffer irreparable harm if a TRO were not immediately granted pending the hearing. As to the first of these two core holdings, i.e. the likelihood of the plaintiffs prevailing on the merits, Judge Tigar found that: “Congress has clearly commanded in the INA [Immigration and Naturalization Act] that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – ‘whether or not at a designated port of arrival.’ 8 U.S.C. § 1158(a)(1).” (at p. 1) He therefore concluded that the Rule:

barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA 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. Defendants’ claims that the rule can somehow be harmonized with the INA are not persuasive. (at pp. 1-2)

Regarding the second key holding, that the plaintiffs will suffer irreparable harm absent the granting of a TRO, Judge Tigar stated that the record:

establishes that, while the Rule is in effect, these asylum seekers experience lengthy or even indefinite delays waiting at designated ports of entry along the southern border…. Further, the record reveals that asylum seekers experience high rates of violence and harassment while waiting to enter, as well as the threat of deportation to the countries from which they have escaped…. [In addition,] the application of the Rule will result in the denial of meritorious claims for asylum that would otherwise have been granted. Accordingly, the Court finds that the Immigration Organizations have made a clear showing that it is likely that they and their clients will suffer irreparable harm absent a TRO. (at pp. 30-32)

Finally, the decision provides that if this matter is not resolved at the hearing now set for December 19th, the TRO can be extended pending resolution of this matter.  Please stay tuned for our updates on subsequent developments in this significant and fast-moving case.