The president justified new restrictions on asylum as a response to the recent marked uptick in arrivals at the southern border. But each measure is a blunt instrument that could harm bona fide asylum claimants.
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Attorney General Bill Barr ruled on April 17 that asylum seekers who present at the border and establish a "credible fear of prosecution or torture" are ineligible for release on bond once they are transferred from expedited removal proceedings to full deportation proceedings. The Department of Homeland Security may still choose to release asylum seekers, but cannot be compelled by immigration judges to do so.
U.S. border enforcement efforts begin much farther south than the Rio Grande.
The language and structure of the statute the Department of Homeland Security claimed as authority lead to the conclusion that the provision cannot be applied to asylum seekers.
On Monday, Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted a preliminary injuction of the Trump administration's Migrant Protection Protocols requiring non-Mexican migrants seeking asylum in the U.S. to be deported to Mexico while their request is processed. The injuction, issued in Innovation Law Lab et al, v. Nielsen, is scheduled to take effect on Friday, Apr. 12. The order is available in full here and below.
The Trump administration signals compliance with non-refoulement by instituting a process that imposes an unprecedentedly high burden of proof for those who fear persecution in Mexico.
The denial means that the administration will have to first seek review of Judge Tigar’s injunction in the U.S. Court of Appeals for the Ninth Circuit.
Judge John Tigar’s decision echoes his previous emphasis, and that of the U.S. Court of Appeals for the Ninth Circuit, on the plain language of the Immigration and Nationality Act.
Judge Jay Bybee relied on the plain meaning of the Immigration and Nationality Act in denying the government’s request to stay a temporary restraining order against new limitations on asylum.
The Temporary Restraining Order Against Trump’s Asylum Ban: Statutory Structure and Agency Discretion
The executive branch does not have the authority to categorically deny asylum applications not submitted at recognized points of entry.