** LEGAL UPDATE **
On November 9, 2018 the Trump administration issued a presidential proclamation and accompanying administrative rule barring people who enter the U.S. through the southern border unlawfully (outside a port of entry) from claiming asylum. The bar was to be in effect for 90 days and then subject to renewal thereafter.
On Monday, November 19, only ten days after the proclamation, a federal district court judge in San Francisco issued a nationwide temporary restraining order (TRO) against the bar.
According to the judge in the lawsuit, which was brought by the American Civil Liberties Union (ACLU) and other groups in East Bay Sanctuary Covenant v. Trump, Trump exceeded his presidential authority in issuing his proclamation.
The judge reasoned in his ruling that legislation passed by Congress—namely the Immigration and Nationality Act (I.N.A.)—expressly allows anyone within the U.S. to apply for asylum no matter how they entered the country.
The TRO against the asylum bar is to remain in effect until December 19 of this year. While the order is in effect, asylum seekers who enter the U.S. between ports of entry through the southern border will be able to apply for asylum, just as they were able to do before November 9.
Asylum seekers who were barred from seeking asylum between November 9 and November 19 during an interview with an asylum officer should immediately contact the asylum office where the interview took place and request a new interview if they were given a negative determination.
Homeland Security Secretary Kirstjen Nielsen has already stated that the administration will challenge the temporary restraining order in court. The administration’s appeal will first go to the Ninth Circuit Court of Appeals, after which the case could potentially be heard by the U.S. Supreme Court.
The Trump administration says the bar is lawful under the president’s broad authority to restrict noncitizens from entering the U.S. due to national security concerns. According to the proclamation, large groups of Central American asylum seekers at the U.S.-Mexican border pose a risk to the United States that necessitates the bar. This national security executive authority is the same authority Trump evoked in his travel ban whose third iteration was ultimately upheld by the U.S. Supreme Court in the case of Trump v. Hawaii, earlier this year.
Asylum seekers should closely follow developments in the legal case against the asylum bar, as it could quickly come back into effect if a higher court reinstates it.
Effective Date: November 19, 2018