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TROUBLE FOLLOWING

The broken legal logic of Trump’s asylum ban, according to the judge who blocked it

Central American migrants from Honduras, part of the Central American migrant caravan, walk along the highway that connects Mexicali with Tijuana
AP Photo/Rodrigo Abd
Seeking asylum.
  • Ana Campoy
By Ana Campoy

Deputy editor, global finance and economics

Published This article is more than 2 years old.

The Trump administration needs to come up with better arguments for blocking Central American immigrants from requesting asylum.

On Monday (Nov. 19), a US district judge ordered the president to halt a policy rolled out earlier this month that prohibits immigrants who enter the country illegally from applying for asylum. The court order, which prevents the administration from enforcing the asylum ban until Dec. 19, came in response to a lawsuit filed by the American Civil Liberties Union and others.

The parties are set to appear in court next month.

In a Nov. 9 executive order, Donald Trump had said illegal immigrants’ entry “would be detrimental to the interests of the United States.” It was the same argument he successfully deployed to keep his travel ban from being thrown out by the courts. In June, the Supreme Court ruled that keeping people out of the US on national security grounds was well within the president’s authority.

But the judge overseeing the asylum case, Jon Tigar, found the government’s arguments defy existing law and legal logic.

Congress has spoken

The central question in the case is whether Trump has the authority to contradict Congress, which, as Tigar writes “has clearly commanded that immigrants be eligible for asylum regardless of where they enter.”

He cited legal precedent on how courts should handle such situations: “If the intent of Congress is clear, that is the end of the matter.”

Incredulous argument

In spite of Congress’s clear language on the issue, the Trump administration argues that it can make immigrants ineligible to apply for asylum solely based on whether they entered the country illegally.

“The argument strains credulity,” Tigar wrote. It’s technically impossible for immigrants to both be eligible to apply for asylum no matter how they got to the US, as Congress states, and to lose that right by entering the country illegally, as the Trump administration has mandated, he said. “There simply is no reasonable way to harmonize the two.”

Not an executive role

The president, through the office of the Attorney General, has the authority to determine that an immigrant is ineligible for asylum based on exceptions spelled out by the law, or by weighing in the particular details of each case. But he can’t rewrite the whole law by changing administrative rules and issuing executive orders, Tigar implied. (Trump’s order was paired with new policies at the Departments of Justice and Homeland Security on how to treat asylum seekers.)

“Basic separation of powers principles dictate that an agency may not promulgate a rule or regulation that renders Congress’s words a nullity,” he wrote.

The limits of executive orders

The Trump administration also argues that entering the US in defiance of a presidential order is a more serious transgression than crossing the border illegally. But Tigar says that’s “not supported by evidence or authority.”

“If what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” he wrote.

Although it’s not looking good for the asylum ban, Trump’s administration has vowed to press on.“We look forward to continuing to defend the Executive Branch’s legitimate and well-reasoned exercise of its authority to address the crisis at our southern border,” the Departments of Justice and Homeland Security said in a joint statement.

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