LOS ANGELES – A federal appeals court on Monday rejected President Trump’s policy that prohibited most migrants from applying for asylum in the United States if they had passed through another country, concluding that the government did “practically nothing” to ensure that make another country a “safe option” for those fleeing persecution.
A panel of three judges from the United States Court of Appeals for the Ninth Circuit in San Francisco affirmed the decision of a federal judge who ruled last year that the so-called third country traffic rule was illegal, and a judge He called it “perhaps the most significant change to American asylum in a generation.”
The ruling was an interim but important step. In September, the Supreme Court had allowed the Trump administration rule to prohibit most Central American migrants from applying for asylum in the United States while the appeals courts deliberated on their legality.
That suspension remains until the Supreme Court takes the case or the Trump administration abandons politics. Meanwhile, almost all asylum seekers have been temporarily blocked from entering the country under a separate administrative directive, issued as a result of the coronavirus pandemic, which closed the border to all but US citizens and legal residents. permanent.
Still, Monday’s opinion was an important legal milestone, a 66-page opinion that found serious legal shortcomings in one of the firm’s immigration policies.
“The Trump administration will surely appeal to the United States Supreme Court,” said Stephen Yale-Loehr, an immigration professor at Cornell Law School.
The traffic rule was jointly issued by the Departments of Justice and Homeland Security in July 2019, when thousands of migrant families were heading towards the southwest border, many of them seeking asylum for violence in Central America. Countering decades of laws and policies, under which the United States had long provided refuge in such cases, it declared that any migrant who passed through another country en route to the border would not be eligible for asylum, with few exceptions.
The policy required migrants traveling by land from El Salvador, Honduras, or other countries to apply for and be denied asylum by Mexico, Guatemala, or another country through which they traveled before they could be eligible to make a protection claim. in the U.S.
If they did not, those who made it to the United States would automatically be considered lacking a credible fear of persecution in their home countries.
The appeals court said there was evidence that contradicted the administration’s claim that migrants could obtain safe protection in Mexico and other countries.
He also said that the administration had not substantiated his assumption that a person who did not apply for asylum in a third country was unlikely to have a meritorious claim.
Judge William A. Fletcher, appointed by former President Bill Clinton, wrote the opinion for the panel, which also included Judge Eric D. Miller, who was appointed by President Trump this year, and Judge Richard R. Clifton, appointed by former President George W. Bush.
Judge Miller agreed in part and disagreed in part, writing that the federal agencies’ “poor” justification for the traffic rule was “particularly troubling because the rule represents such a major change in policy, perhaps the most significant change to American asylum in a generation. “
The main opinion said that “there was no evidence on the record” to support the rule’s assumption that migrants who do not apply for asylum in Guatemala or Mexico en route from, for example, El Salvador or Honduras, can be assumed to lack a credible fear of persecution in their home country.
“This ruling very simply says that Congress has control of asylum and that the administration cannot act unilaterally to destroy our asylum system,” said Lee Gelernt, an attorney for the American Civil Liberties Union, who argued the appeal on behalf of various groups contesting rule.
Neither the Justice Department nor the Department of Homeland Security had immediate comment on the decision.
In a related case this month, a federal judge in the United States District Court for the District of Columbia ruled that the administration had unlawfully implemented the traffic rule by not allowing public comment first.
That decision resulted in a suspension of the transit ban for narrower reasons.
The order that effectively closed the border to asylum seekers, using the coronavirus pandemic as justification, is being challenged in federal court in Washington.
