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At least for the immediate future, the Trump Administration’s latest measures on asylum will go unenforced. As of last week, a district court judge in California has ruled that the new measures, which we covered in a blog post two weeks ago, were invalid and outside the scope of executive power.

While this is a victory for the American Civil Liberties Union (ACLU), which led the legal challenge against the asylum restrictions, the reversal showcases the continued uncertainty in American immigration policy, particularly when it comes to immigration and asylum claims from Central America and Mexico. In this week’s post, our team at Greco Neyland discusses the recent ruling from California and its implications for the weeks and months ahead.

Events Leading to New Restrictions on Asylum

In the past few weeks, a caravan of migrants from Central America has captured the attention of the media and U.S. population. These migrants come from El Salvador, Honduras, and Nicaragua. As the caravan has made its way north, the Trump Administration and other executive agencies have taken steps to prepare for their arrival at the U.S. border. The most immediate focus on the Administration, how to stop their entry into the United States.

The Trump Administration has lamented the number of Central American migrants arriving in the United States for the full two years of his presidency. The government has pointed to gang members and illnesses as a reason to limit the entry of these individuals into the United States. Yet, the occurrence of both is down substantially from the 1990s and 2000s. Rather today’s population of arrivals is far more likely to be families, including young children and new mothers.

Still, the caravan has sparked new fears of illegal immigration and overwhelming asylum claims. There is a fear, perpetuated by the Administration’s rhetoric, that upon arrival at the U.S./Mexican border, this caravan will create substantial security and safety concerns. The executive branch also argued that processing these asylum claims after the migrants have entered the United States would be inefficient and uncontrolled. Thus, to prevent the alleged negative impact of the caravan, the Administration imposed new restrictions on the asylum process in the United States.

The measures, arguably to add security and procedure to the asylum process, prevented any immigrant from claiming asylum while in the United States. This substantial restriction on asylum law is in direct contrast to laws and regulatory advice from Congress, which provided a clear legal basis for claiming asylum after entering the United States. This privilege even extends to individuals that came to the United States illegally.

Case Against the Administration’s Asylum Ban

In response to the Administration’s new measures on asylum, the ACLU and two other organizations, Center for Constitutional Rights and the Southern Poverty Law Center, filed a lawsuit in a federal district court in California. The underlying argument made by the ACLU and others was that the executive branch overstepped its allowed powers and authority in issuing the restrictions or “ban” on asylum.

There are two points important to this argument. First, is that Congress, the legislative branch, has the power to create and pass federal laws. The executive branch, including the president and other agencies, like the Department of Homeland Security and Department of Justice, do not have this power. In fact, the executive branch is specifically limited to enforcing the laws passed by Congress. Therefore, this type of action conflicts with the bounds of the President’s executive power.

Secondly, it is crucial to recognize that the executive branch does have some ability to enforce laws in a manner not entirely specified by the text of the statute or regulation. For example, if Congress hasn’t fully explained how a certain law should be carried out, then the executive might have some greater latitude. But when Congress has provided instruction or statement on a certain law, the executive must follow it. It is the responsibility of the judiciary to determine a law or application of the law is unconstitutional or illegal.

Under this second point, the President is prevented from issuing a measure or executive action that is in direct contrast to the law made by Congress. The ACLU rested the majority of their argument on this point, stating that if Congress wished to change the asylum law, they could and would.

Ruling by the District Court and Repercussions

Federal judge, Jon Tigar was responsible for hearing and deciding the initial case against the Trump Administration measures. In his decision, Judge Tigar fully agreed with the ACLU’s arguments against the asylum ban. The opinion relied on arguments around executive power and separation of powers to find President Trump overstepped his authority in issuing the presidential proclamation on November 8^th.

Of note, the district court stated that the executive branch does have some authority over the asylum process through the Department of Justice. As part of this power, the President could issue proclamations addressing safety and security, but cannot issue a measure that is in direct contradiction to Congressional law. Given that Congress has directly addressed the issue and wrote asylum law in the opposite outcome as the presidential proclamation, the action by the President is invalid and unenforceable.

Additionally, the district court found that the presidential proclamation couldn’t be carried out without thwarting the established asylum law. Immigration law allows an individual to request asylum after entering the country, this can’t be taken away without changing the law. It would be impossible to implement the President’s instructions without changing the law, which he has no power to do.

What’s Next for the Asylum Process?

The decision by Judge Tigar prevents border patrol and immigration authorities from carrying out the presidential proclamation between now and December 19^th. On December 19^th, the court will need to decide on whether to permanently block the asylum measures. As well, the Department of Justice has the opportunity to appeal the district court’s decision. Given the Department of Justice’s actions in previous cases, such as the travel ban, an appeal seems likely.

Do you have questions regarding asylum in the United States or recent actions taken by the Administration regarding asylum? We can help at Greco Neyland in Los Angeles. Contact our team at 213-295-3500.