- The Washington Times
Wednesday, July 1, 2020

A federal judge struck down a key part of the Trump administration’s immigration crackdown framework late Tuesday, ruling that Homeland Security cut too many corners when it tried to block asylum seekers from picking and choosing which country they settle in.

Known as the “third-country” rule, it was intended to prevent Central Americans from crossing Mexico — where they could have claimed asylum — in order to reach the U.S.


Administration officials believe that many undocumented immigrants were abusing the system with bogus claims, and requiring asylum-seekers to make their claims in Mexico would prevent them from coming.

Judge Timothy J. Kelly said the policy might have been legal but officials didn’t follow the notice and comment requirements laid out in the Administrative Procedure Act, which governs major new regulations and rules.

Judge Kelly, a Trump appointee to the bench, said Homeland Security could also have argued there were important foreign policy reasons not to go through those hoops, or given a broader factual basis for the policy, but they didn’t do that either. All they offered, he said, was a newspaper article, which he said was too thin a basis.

It’s the second time in recent weeks that a major Trump immigration policy has succumbed to that argument, following last month’s ruling by the Supreme Court that Homeland Security bungled the phaseout of DACA.

In the near term, the ruling is unlikely to have much effect because the administration, citing public health powers during the coronavirus pandemic, is immediately ousting most of those who show up at the border illegally.

But the third country rule was one of a number of steps the Trump administration had taken to get a handle on last year’s record surge.

Immigrant-rights advocates called the decision a thrilling victory.

“The rule had a devastating impact on asylum-seekers, and we are glad to see Judge Kelly clearly state that this administration is not above the law even as it tries to villainize refugees,” said Keren Zwick at the National Immigrant Justice Center.

The ruling is similar to another case pending on the West Coast, where a federal appeals court also decided against the asylum crackdown. That ruling was stayed by the Supreme Court.

The Trump administration has repeatedly been tripped up by the Administrative Procedure Act.

A year ago, the administration’s failure to follow that law helped sink President Trump’s attempt to add a citizenship question to the 2020 census. It has also delayed attempts to give states more flexibility under Obamacare.

But it’s in the area of immigration where the law has really hurt.

Attempts to end Temporary Protected Status for hundreds of thousands of immigrants who are in the U.S. illegally was halted because a court found APA violations. Five courts also ruled against Mr. Trump’s attempt to require immigrants to be financially self-sufficient, citing APA violations — though the Supreme Court has allowed that policy to go into effect while the cases are being argued.

In the case of the third-country rule, the administration reasoned that if someone was a legitimate asylum-seeker, they should be safe in the first outside country they reached. In most cases, that means Central Americans crossing Mexico should claim asylum in Mexico.

But few of those coming to the U.S. will qualify for asylum. Instead, the claims are often a cover to get into the country, then gain a foothold here.

If told they would be made to request asylum in Mexico, most would stop coming, the administration said — and indeed, that has proved to be the case, with a massive drop in illegal immigration at the southwest border over the last year.

The Trump administration had said Judge Kelly should defer to Homeland Security’s expertise, arguing that if they had gone through the usual notice-and-comment process, it would have taken months and would have sparked a wave of migrants trying to beat the deadline.

Judge Kelly said that’s not the way it works.

“The question, though, is whether Defendants’ conclusory prediction of a surge in asylum seekers so great and so rapid as to threaten life or defeat the very purpose of the rule if notice-and-comment procedures were followed is entitled to deference on this record. And Circuit precedent commands that it is not,” he wrote.


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