A federal judge last week blocked President Trump’s latest attempt to crack down on asylum-seekers after the administration expanded the number and types of crimes that can bar people from getting protection to include offenses like multiple DUIs and ID fraud.
Judge Susan Illston, a Clinton appointee to the court in California, said the administration cut too many corners in writing the regulation and said Congress never intended to bar people with lower-level crimes from being able to win asylum.
“The problem is that the rule sweeps too broadly,” she wrote. “In doing so, it both contradicts Congress’s intent and exceeds the authority Congress gave to the executive agencies. It does so without sufficient explanation from the agencies for their reasoning and without adequate notice and opportunity for the public to comment on these changes.”
The new policy had been finalized earlier this fall, after a brief notice and comment period, and was slated to go into effect Friday.
It would have barred migrants with offenses such as document fraud or multiple drunken driving incidents from being able to win asylum. A civil finding of domestic violence, such as a restraining order, even without a conviction, would also have been a bar.
Homeland Security said immigration law defines some specific crimes that bar asylum, but also gave the administration power to decide other crimes serious enough to disqualify a person.
“We’re a generous nation, but we don’t want to be generous to people who are abusing their household members,” Ken Cuccinelli, acting deputy secretary, said last month when the rule was finalized.
But Judge Illston said the rule would have denied valid asylum-seekers the chance to make their case.
And she said expanding the asylum bar to so many crimes ran contrary to the point of the law, where she said Congress was clearly signaling that some crimes were serious enough to block asylum, but some crimes didn’t rise to that level. She said under the policy, a second marijuana possession conviction could halt an asylum claim.
“It is hard to conceive of how such a misdemeanor would rise to the level of ‘particularly serious’ or how it would constitute a danger to the broader community,” she ruled.
She also wondered about barring someone who hadn’t been convicted but was believed to have been involved with domestic violence — as in the case of a restraining order.
She issued a nationwide block, calling the administration’s request for a more limited injunction “absurd.”
Asylum is the protection granted to migrants already on U.S. soil who fear persecution if sent back home. It’s similar to refugees, who are those seeking protection while still outside the U.S.
Homeland Security argued those denied asylum might still be able to win a stay of deportation under anti-torture provisions if they were in danger of persecution back in the home countries.
The asylum system has been flooded with claims in recent years, particularly from Central Americans who found it to be a viable workaround to avoid speedy deportations.
Judge Illston’s ruling came just a day after another federal judge ruled the administration had to let most undocumented immigrant children who arrived at the border without parents into the country even during the coronavirus pandemic.
The Centers for Disease Control and Prevention has triggered a section of public health law that authorizes Homeland Security to quickly expel unauthorized border crossers, but a judge ruled immigration law trumps that public health law.
According to a section of immigration law, children who show up without parents and came from countries that don’t share a border with the U.S. — so anywhere further afield than Mexico and Canada — must be welcomed and transferred to the federal Health Department, which then searches for sponsors to take the children.
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