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Legally Speaking: Could Trump change immigration law over caravan?

Honduran migrant Alfredo Lopez, part of the Central American migrants, rests on the ground waiting to access to the shelter in Tijuana, Mexico, Tuesday, Nov. 20, 2018. Migrants camped in Tijuana after traveling in a caravan to reach the U.S weighing their options after a U.S. court blocked President Donald Trump's asylum ban for illegal border crossers. (AP Photo/Ramon Espinosa)

President Donald Trump’s administration has had to endure a handful of setbacks in the courts when it comes to immigration, travel, and press rights. The most recent set back came in the form of a TRO (temporary restraining order) issued by a federal judge in California.

Judge Jon S. Tigar, a U.S. District Court Judge in San Francisco, issued a temporary order that the Trump administration cannot deny asylum to people solely based on where they entered the country. Although the order is temporary, it can be extended at the next court hearing on Dec. 19.

(This case deals with intricacies within both immigration and procedural law and it is easy to get lost in the forest.  As such, this post explains the basics of what the suit is about and why the judge issued the TRO.) 

This latest lawsuit, East Bay Sanctuary Covenant v. Trump, came on the heels of two actions taken by the federal government. The first being the Department of Justice and the Department of Homeland Security published a joint interim final rule, “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims.” This adds an “[a]dditional limitation on eligibility for asylum” that applies to “applications filed after November 9, 2018.”

The second action was taken by Trump. He issued a “Presidential Proclamation” that suspended  “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico for ninety days.”

According to the court, “[t]he combined effect of the Rule and the Proclamation is that any alien who enters the United States across the southern border at least over the next ninety days, except at a designated port of entry, is categorically ineligible to be granted asylum.” Tigar explained that if the government were to allow only those people who cross at legal checkpoints to request asylum, then that would “amount to a transformation of long-established asylum procedures.” In addition, it would “violate a clear command from Congress that it doesn’t matter where a person enters the US in applying for asylum.”

There are requirements to gain asylum, crossing at a legal checkpoint is not one of them. Federal law allows “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” (8 U.S.C. § 1158(a)(1).)

Under federal law there are three things an applicant must prove to be granted asylum: (1) an applicant must have left their country because of persecution or a legitimate fear of persecution because of their race, religion, nationality, membership in a particular social group, or political opinion… and their status in one of those groups “was or will be at least one central reason” for the persecution…(2) the applicant gets past certain bars and limitations contained in the statute and (3) the attorney general has to be convinced to give asylum.

Tigar acknowledged that the Supreme Court affirmed Trump’s broad authority to limit or stop aliens from entering the country; however, he went on to explain the president doesn’t have the authority to rewrite the Immigration and Naturalization Act (“INA”).  “The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

Here is the bottom line #LegallySpeaking, Trump and his administration attempted to rewrite immigration law by adding the requirement a person must enter the country at a legal checkpoint in order to apply for asylum. Tigar issued a TRO stopping the administration from carrying out Trump’s wishes because the president did not have the authority to change the law and he did not go through the proper procedure.

Looking into my crystal ball, I think it is likely the TRO will morph into a preliminary injunction and remain in effect until the case ends.  Much like the travel ban, it is possible the above rule and proclamation will go through many edits and changes over the next several weeks or months.

Trump cannot, on his own, rewrite the law, but, as has been demonstrated, that will not stop him or his administration from trying to make changes in federal immigration law.

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