Can Trump Administration Impose Tighter Restrictions on Asylum? Judges to Weigh In

Federal judges on Tuesday challenged government lawyers over the legality of a Trump administration rule that denies asylum to people who don't come through a designated port of entry, even though the law specifically allows them to apply — regardless of where they enter the U.S.

The exchange was part of a hearing before the 9th U.S. Circuit Court of Appeals on two cases challenging Trump administration policies restricting access to asylum protections for tens of thousands of migrants at the U.S.-Mexico border. The hearing in San Francisco addressed both the “port of entry” rule and another policy that forces most non-Mexicans who seek asylum at the border to wait in Mexico while their cases are heard in U.S. immigration court.

The administration has sought to deter the growing number of families and others seeking safe haven in the United States, many of whom say they are fleeing violence in Central America from which their government fails to protect them. The policies are part of a larger effort by the administration to restrict immigration overall.

In the first case, Justice Department attorney Scott Stewart asked the three-judge panel to overturn a lower court ruling last December that blocked the “port of entry” rule. The government has said the restriction is “an important rule designed to address a crisis at our southern border that is overwhelming our asylum system.”

In court, Stewart said the rule is valid because it still allows people who don’t come through a port of entry to apply for asylum — even if none of them will be granted it.

“This ability to apply for asylum, your honor, doesn’t guarantee any substantive outcome,” Stewart told the judges. “This authority to grant asylum is imbued with discretion.”

Judge Richard Paez cut him off.

“It seems kind of odd that Congress has pretty specifically set out when an alien can apply — whether or not at a designated port of entry — and then the agency comes along and promulgates a regulation that basically just wipes that out. How is that consistent with the text of the statute?” asked Paez, who was appointed to the bench by President Bill Clinton.

Representing a group of immigrant legal service organizations challenging the “port of entry” rule, ACLU attorney Lee Gelernt argued that the asylum restriction was in blatant violation with the language of the law.

“We do not think it would have made sense for Congress to say — and twice now, 1980 and 1996 — you may apply regardless,” said Gelernt. “Congress looked at this issue, understood how dangerous it was to eliminate asylum for people who couldn't make it to a port of entry, and put that language in.”

The second case before the 9th Circuit Tuesday dealt with the Trump administration’s Migration Protection Protocols, known as the “Remain in Mexico” policy. It requires many non-Mexicans who seek asylum at the border to wait in Mexico for their cases to be heard in U.S. immigration court.

In April, U.S. District Judge Richard Seeborg in San Francisco blocked the policy. But the following month, the 9th Circuit allowed it to take effect while the government appeals Seeborg’s preliminary injunction. As of late August, 38,000 people had been ordered to remain in Mexico while their asylum cases proceed.

ACLU attorney Judy Rabinovitz argued that the forced return to Mexico was illegal and asked the court to allow the lower court’s injunction to block it. In particular, she said it was urgent to stop the U.S. from returning asylum-seekers to a country where they could face danger — a requirement of international law known by the French term “non-refoulement.”

“The greatest suffering is with respect to those individuals who are being returned to persecution or torture despite the non-refoulement obligation,” said Rabinovitz. “Our concern is just to ensure that we get relief for those people.”

Judge William Fletcher, another Clinton appointee, challenged Department of Justice attorney Stewart, suggesting that the interview used to place migrants into the Remain in Mexico program is flawed.

“You don’t even ask if they have any kind of fear,” said Fletcher. “You're not even asking them the key question with respect to refoulement, that is to say, ‘Are you afraid?’ ”

Stewart replied that the government doesn’t need to ask because asylum-seekers can volunteer that they fear being sent back to Mexico.

Douglas Oviedo, an evangelical pastor from Honduras, is one of the plaintiffs in the Remain in Mexico case. He is one of a few people who have won asylum through that program.

Speaking after the hearing, Oviedo said he spent 11 months in a Tijuana migrant shelter, unable to work. Central American migrants face discrimination in Mexico but, even worse, they are preyed upon by local gangs and drug cartels and also by the Mexican police. Women are raped and young people are extorted, he said.

“Women and children are hiding in the shelters,” he said. “Migrants don’t leave because they’re afraid to go out in the streets.”

KQED's Farida Jhabvala Romero contributed to this report.