In what is being called a legal setback to the Trump administration’s asylum policy, a U.S. federal judge struck down a rule that curtails asylum applications at the U.S.-Mexico border on Tuesday. The judge, U.S. District Judge Timothy Kelly, is a Trump appointee based in Washington, D.C.
It looks like it was a matter of sloppiness in the process rather than a ruling against the policy itself. The good news for those of us concerned about border security and immigration issues is that this ruling will likely have little effect in the near term. In March, the Trump administration put into place a separate coronavirus-related policy that allows border authorities the ability to rapidly deport migrants without standard legal processes. This stops the pathway to request asylum.
The ruling from Judge Kelly pertains to a fast-track rule put into place in July 2019. The rule blocks asylum seekers who pass through another country en route to the United States. It is meant to pressure other countries to help slow the migration of Central American migrants to the U.S – Mexico border. Applicants have to have previously applied for asylum from a previous country or be victims of sex trafficking. Not long after the administration put the rule into place, California-based U.S. District Judge Jon Tigar issued a nationwide injunction blocking it. But, the Supreme Court later stayed that injunction to wait for the outcome of the litigation.
In his ruling, Judge Kelly issued a 52-page opinion that said, “the Trump administration had failed to provide adequate time for public comment or show there was a good reason to bypass standard regulatory processes.”
This isn’t the first time a lack of following the proper process has come back to bite the Trump administration. It looks like the staff needs to tighten up crossing their ‘t’s and dotting their ‘i’s in official paperwork. In June, the Supreme Court gave what looked to be a victory for the children of illegal immigrants when it ruled against the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program. That ruling came down because the administration didn’t meet regulatory requirements – it wasn’t a statement of support for the DACA program itself.
Hardy Vieux, an attorney at Human Rights First, issued a typically overwrought statement that praises Judge Kelly’s decision while trashing the bad Orange Man. The Capital Area Immigrants Rights Coalition weighed in, too. An ACLU attorney also spoke about the administration’s “failed attempt to make an end-run” in the process. “End-run” must have been included in the talking points for the open borders crowd.
“Judge Kelly’s ruling is proof that the administration cannot do an end-run around the law,” Vieux said in a statement. “In the United States of America, we follow the rule of law, even when it benefits asylum-seekers demonized by this administration. We do not follow the rule of one capricious man, who treats the law as something on which to trample, on his way to a photo op.”
The Capital Area Immigrants Rights Coalition, another plaintiff, added that the decision would remove a barrier for those seeking safety from persecution.
“By striking down this rule, Judge Kelly reaffirmed two fundamental principles,” said Claudia Cubas, the group’s litigation director. “The protection of asylum seekers fleeing for safety is intertwined with our national values and that the United States is a country where the rule of law cannot be tossed aside for political whims.”
And ACLU attorney Julie Veroff, who helped bring a separate challenge to the rule in California, said, “The court recognized that the Trump administration unlawfully skipped steps mandated by Congress to ensure transparency in its failed attempt to make an end-run around asylum protections.”
Judge Kelly’s ruling can be appealed but it is unclear if the Trump administration intends to do so.