A federal appeals court has blocked enforcement of the Trump administration rule that bans asylum for anyone who passes through another country before getting to the US without first seeking asylum in the other country.
The 9th US Circuit Court of Appeals panel split 2-1 to uphold an injunction blocking the rule and calling the government’s arguments “weak” and the potential harms it claims “self-inflicted.”
It follows by one day a separate ruling by another 9th Circuit panel that blocked the Trump administration’s “remain in Mexico” plan in two states along the US border, Arizona and California.
The ruling could affect as many as 26,000 non-Mexican asylum-seekers forced to wait in Mexico to file asylum petitions only to learn they would be barred from US asylum claims because they did not apply for protection in Mexico first.
The government failed to show that it would face significant harm or is likely to win the case in order to justify lifting the existing injunction.
“We are dubious that taking the time necessary to make fairly simple factual determinations for a few months constitutes the sort of irreparable harm that can support the grant of a stay pending appeals,” wrote Judge Marsha Berzon. Chief Judge Sidney Thomas joined her in the majority.
In a 70-page dissent, Judge Daniel Bress wrote that the stay pending appeal “forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border in Mexico.”
Bress is referring to the US government’s failure to keep a waitlist to track of those who were turned away from applying for asylum by the metering program and thus subject to the new ban under the “transit rule.”
The US began a program of what’s known as “metering” of asylum-seeking migrants at the border by sharply limiting the number of people who could enter daily and apply. They turned away thousands of people from a variety of countries, forcing them to wait in Mexico.
Then on July 16, 2019, border authorities issued a new rule that all asylum claims would be barred for non-Mexican citizens arriving at the border if they had not first applied for asylum in Mexico or any other country they passed through before they got to the US border.
Not only had many of these people been previously turned away by the “metering” limits, but the delay would now make the ineligible for Mexican asylum because Mexico has a 30-day deadline to apply.
Berzon countered Bress by noting that while the US did not keep waitlists of asylum applicants turned away, the Mexican refugee agency did, as did organizations that help with housing and other aid. The US even relied on the Mexican waitlist to prioritize entrants before the “transit ban.”
The class action case was filed on behalf of 13 asylum-seekers by Al Otro Lado, a legal services group.
They represent, among others a Nicaraguan who fled after police threatened to kill him and burn his business for participating in a strike against the government; a man from Cameroon who fled after his father was burned to death and he was tortured by military officers who accused him of being a separatist; and a Cuban who was threatened and punched by a political official for calling the government corrupt.
Case: Al Otro Lado v. Wolf, No. 19-56417