Written by: Taher Kameli, Esq.
The Federal judiciary has frequently been relied on to block the anti-immigration policies of the Trump administration. However, as with any litigation, there is no guarantee as to how any Federal judge will rule on any specific immigration law issue. This point was made abundantly clear on July 24 when 2 Federal courts issued different rulings on the Trump administration’s effort to significantly restrict asylum protection for migrants.
These 2 cases involved lawsuits against the new rule of the Trump administration (published in the Federal Register to be effective July 16) that generally makes migrants ineligible for asylum protection in the United States if they passed through another country while traveling to the United States, but failed to apply for asylum protection in such other country. It is believed that this anti-asylum new rule will most adversely apply to Central American migrants who pass through Mexico on the way to the U.S. southern border.
In the first case decided on July 24, U.S. District Court Judge Timothy J. Kelly in Washington, D.C. rejected the issuance of a temporary restraining order against the anti-asylum new rule of the Trump administration. In an oral ruling, Judge Kelly (a judicial appointee of President Trump) held that “it’s in the greater public interest to allow the administration to carry out its immigration policy” and that the Trump administration’s interest outweighed the damages that might be experienced by the plaintiffs in the case (immigration advocacy groups).
With respect to the “irreparable harm” test necessary to obtain a temporary restraining order, Judge Kelly stated that the plaintiffs in the case had failed to show how many clients they would be unable to reach, how many people would be turned away, and how many migrants would ultimately qualify for asylum, as a result of the anti-asylum new rule. Judge Kelly added that the plaintiffs in the case had failed to demonstrate that the new rule would “greatly increase” the amount of time it takes to prepare for migrants’ imminent danger interviews.
Later in the day, U.S. District Court Judge Jon S. Tigar in San Francisco, California issued a nationwide preliminary injunction against the anti-asylum new rule of the Trump administration (East Bay Sanctuary Covenant v. Barr, 2019 U.S. Dist. LEXIS 124268 (N.D. Cal. 2019)).
Judge Tigar (a judicial appointee of former President Barack Obama) stated, “This new rule is likely invalid because it is inconsistent with the existing asylum laws. . . . An injunction . . . would vindicate the public’s interest – which our existing immigration laws clearly articulate – in ensuring that we do not deliver aliens into the hands of their persecutors. . . . Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. . . . While the public has a weighty interest in the efficient administration of the immigration laws at the border, . . . it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat”.
The ruling of Judge Tigar (who was aware of Judge Kelly’s ruling earlier in the day) overrides as legal authority the ruling of Judge Kelly, although both decisions are likely to be appealed. Any ultimate conflict between different Circuits (Courts of Appeals) on the anti-asylum new rule of the Trump administration would need to be resolved by the U.S. Supreme Court.
The divergent decisions from Judge Kelly and Judge Tigar show that as judges can easily reach different decisions on similar issues, it is critical that immigrants retain qualified immigration counsel, such as Kameli Law, which has successfully represented immigrants for many years, to have the best chance of being successful in court. If you have any immigration law issue, whether concerning the anti-asylum new rule of the Trump administration or any other matter, please contact the Kameli Law, at email@example.com or 312-233-1000, for assistance.