A California federal judge grilled government lawyers Monday over a Trump administration rule barring asylum for migrants who cross the southern border outside of ports of entry, specifically focusing on whether the change will affect asylum-seekers with legitimate cases and if it conflicts with earlier rules set by Congress.
In the hearing, Judge Jon Tigar of the U.S. District Court for the Northern District of California pushed both sides on whether a recent proclamation from President Donald Trump and an interim final rule from acting Attorney General Matthew Whitaker and Department of Homeland Security Secretary Kirstjen Nielsen would impact migrants who would have been “granted asylum under existing law but who would have been denied asylum under the new rule” and whether there is a correlation between weak asylum cases and non-port of entry crossings that justifies the new rule.
Tigar wanted to know how many migrants would have been “granted asylum under existing law but who would have been denied asylum under the new rule” and whether there is a correlation between weak asylum cases and non-port of entry crossings that justifies the new rule.
American Civil Liberties Union lawyer Lee Gelernt, who represented the nonprofit plaintiffs, said that about 6,000 of the asylum cases granted last would not have been granted under the Trump administration’s new rule. He said that many migrants with legitimate asylum cases cross the border between ports because they don’t know the correct entry spot or are forced to another location by cartels.
Gelernt also argued that the new rules violate the Immigration and Nationality Act set by Congress, which state that asylum-seekers can enter the country outside of ports of entry.
The Trump administration, represented by Department of Justice Civil Division Deputy Assistant Attorney General Scott Stewart, said the new rule does not conflict with Congress’ because asylum-seekers can still enter the U.S., if it’s done through a designated port.
A similar hearing was also held in district court in Washington, D.C., on Monday.
Tigar pushed back on Stewart’s argument, asking how the government “makes a distinction between Congress saying you can apply for asylum, regardless of whether you came in at a port of entry” and the president and attorney general saying, “We can deny asylum on the same ground.”
“If the rule is valid, what’s left of that congressional intent?” Tigar asked.
Stewart also argued that the nonprofit groups, East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and the Central American Resource Center in Los Angeles, who are also represented by the Southern Poverty Law Center and Center for Constitutional Rights, lack standing, as none of them are migrants affected by the new rule.
Stewart said that negative impacts to funding the groups have claimed as injury are speculative, as the suit was filed just hours after Trump’s proclamation on Nov. 9.
Gelernt said the plaintiffs have standing and that “organizations are routinely allowed to file these types of lawsuits” because the new rule could force them “to rearrange their entire organization.” Gelernt said he believes they also have third-party standing for unaccompanied children being denied applications for entry at ports of entry in Mexico.
The ACLU lawyer estimated Tigar would make his decision by Monday afternoon. If he grants the TRO, the next step could be a quick preliminary injunction hearing, followed by an appeal by either side to the U.S. Court of Appeals for the Ninth Circuit. Gelernt said his ultimate goal is a permanent injunction against the Trump administration’s asylum rule.