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Judge: Trump's asylum ban 'irreconcilably conflicts' with federal law

A federal judge has blocked President Trump's plan to bar people who crossed the U.S.-Mexico border without going through a port of entry from applying for asylum, saying that the move "irreconcilably conflicts" with federal law and the "expressed intent of Congress." 

In a 37-page ruling, U.S. District Judge Jon Tigar issued a temporary restraining order blocking the Trump administration from implementing the plan for the next 30 days until a December 19 hearing. 

"Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," Tigar wrote, rejecting the government's claims that the new rule "can somehow be harmonized" with the Immigration and Nationality Act. 

The INA states simply that anyone "who is physically present or who arrives" in the U.S. can apply for asylum "whether or not at a designated port of arrival." 

"Considering the text and structure of the statute, as well as the interpretive guide of the U.N. Protocol, reveals Congress’s unambiguous intent. The failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process," Tigar wrote. 

However, less than two weeks ago, Homeland Security Secretary Kirstjen Nielsen and newly-installed acting Attorney General Matthew G. Whitaker — who took over the post from his boss Jeff Sessions after Sessions was sacked by the White House just after the mid-terms — published an interim rule that would allow officials at Homeland Security and the Justice Department to amend their regulations, and DHS to create a "screening process" specifically to bar people from seeking asylum if they entered the United States between the ports. 

This was backed by a presidential proclamation which based the ban on the potential arrival of thousands of people from Central America, who were walking through Mexico toward the U.S. border, and "appear to have no lawful basis for admission into our country." 

"They are traveling in large, organized groups through Mexico and reportedly intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit," the White House said. "The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders." 

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Three civil rights groups, including the American Civil Liberties Union and the Southern Poverty Law Center, filed a lawsuit the next day, on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles.

Tigar wrote that civil rights groups were able to show that asylum seekers "will suffer irreparable injury if the rule goes into effect pending resolution of this case," including a increased risk of "violence and other harms at the border, and many will be deprived of meritorious asylum claims." However, the "government offers nothing in support of the new rule that outweighs the need to avoid these harms," he wrote. 

"The combined effect of the Rule and the Proclamation is that any alien who enters the United States across the southern border at least over the next ninety days, except at a designated port of entry, is categorically ineligible to be granted asylum," wrote Tigar. 

Tigar also ruled that the injunction should be implemented nationwide because "Where a law is unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide injunction is appropriate." 

Lee Gelernt, who argued for the ACLU in court on Monday, called the president's ban illegal. 

"This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers," said Gelernt. "There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades."

In a statement, Benjamin Johnson, the executive Director of the American Immigration Lawyers Association, praised Tigar's decision. 

"The separation of powers delineated in our Constitution is not an annoyance the Trump administration can push aside when it gets in the way. This ban was an attempt to shred the protections put in place by Congress to ensure vulnerable people are accorded a meaningful chance to apply for asylum," Johnson said. "The Trump administration cannot override Congress' considered and reasoned decision that asylum seekers, however they enter the country, have the right to seek that protection. AILA is thankful that the judiciary stood firm against a destructive attempt to undermine our nation's core values and put lives in danger," he said. 

The ban on asylum seekers came just White House officials sounded the alarm that an exodus of people traveling on foot through Mexico might eventually try to breach the U.S.-Mexico border. 

As part of this, the Defense Department deployed 5,600 active duty soldiers from more than 60 different units to the border, including around 1,500 in Arizona. 

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While thousands of troops set up camp near Donna, Texas, troops in Arizona began hardening the U.S. border in Nogales, installing CONEX containers to block two traffic lanes at the Dennis DeConcini Port of Entry, while others wrapped "razor" wire along the bollard walls, and on the roof of a pedestrian gate at one of the Morley border crossing. 

This was coupled with a major public relations push by Customs and Border Protection officials at U.S. ports, asking asylum seekers to "please present yourself at the port of entry." 

Mexican officials said on Saturday that around 2,800 people identified as members of the "caravan" were seeking shelter in Tijuana, and another 657 were in Mexicali. They also identified another group of 3,036 people who were now in central Mexico and could travel up to the northern Mexico states on Sinaloa or Sonora. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Arizona Republic photo/Nick Oza, Pool

A man is arrested during a tour of the Dennis DeConcini Port of Entry in Nogales, November 9.

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