by Dara Lind for ProPublica
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The Trump administration appears not to have informed immigration judges or prosecutors about a federal court ruling this week that ordered it not to block asylum for migrants who had agreed to wait at the U.S.-Mexico border.
As a result, immigration judges are still hearing these migrants’ cases without realizing they are eligible for asylum — and some asylum-seekers may have had their claims erroneously denied.
The ruling was issued late Tuesday, November 19 by Judge Cynthia Bashant of the Southern District of California. It limited the scope of a regulation the Trump administration implemented in July, which barred asylum for anyone who traveled through Mexico before entering the U.S.
As ProPublica reported this summer, the regulation affected thousands of migrants who had actually followed U.S. officials’ instructions to wait at official border crossings in Mexico, so that they could ask for asylum without violating U.S. law. (While it’s legal to seek asylum no matter how someone crosses the border, people who cross between ports of entry are committing a federal misdemeanor.) Those migrants were subject to a federal policy known as metering, which restricted the number of asylum-seekers admitted at a given port of entry per day.
Bashant ruled that the immigrants who were waiting at the border when the regulation went into effect had already attempted to seek asylum, so the regulation should not apply to them.
Many of the asylum-seekers who entered after July 16 are already having final hearings in their cases. They would have been denied asylum before last week’s ruling because of the regulation, but now they must have their claims considered on the merits.
“The cases of affected asylum-seekers are moving quickly, and it is incumbent upon the government to ensure that its personnel comply with this order immediately,” said Melissa Crow of the Southern Poverty Law Center, one of the plaintiffs in the case.
“The government is legally obligated to comply with the court’s order and risks being held in contempt of court if they fail to do so,” Crow said.
Part of compliance with any court order is issuing guidance to the federal employees who would be applying it — in this case, immigration judges and prosecutors. When the Supreme Court issued a ruling allowing the asylum-ban regulation to be implemented, in September, guidance was sent to immigration judges the next day.
Two immigration lawyers told ProPublica that they had hearings this week, after the ruling was issued, for clients whose asylum requests would be covered by the new ruling. Both of them said that neither the judges nor the prosecutors in those cases had been informed.
The Department of Justice and the Department of Homeland Security did not reply to requests for comment about whether guidance had been issued.
Lawyer Ashley Huebner of the National Immigrant Justice Center said that the judge in her case, in Laredo, Texas, appeared to have no knowledge of the ruling. According to Huebner, the prosecutor in the case said she had received no information. (Huebner did not disclose the identities of either to ProPublica, out of concern that the judge would retaliate against her client.) Because this was her client’s final hearing, the client would have been denied asylum had Huebner not known about the new ruling and informed the judge. Because she spoke up, she said, the migrant was granted asylum.
The second lawyer who spoke to ProPublica, who wished to remain anonymous to prevent retaliation against their client, was told by a judge in the Otero detention center in New Mexico, “No, (the client) is banned from asylum.” When the lawyer referred to the new ruling, the judge told her that the Supreme Court had overruled it (apparently confusing the new ruling, which applies specifically to migrants who were waiting at the border, with a short-lived ruling against the regulation itself, which the Supreme Court overturned in September).
When the lawyer gave the judge a copy of the new ruling, which applies nationwide, the judge insisted that it only applied in the 9th Circuit. Ultimately, the judge ordered the lawyer to submit a brief to make the case.
Hearings in many courtrooms — including Laredo — are closed to everyone but the judge, prosecutor and the migrant (and the migrant’s attorney, if they have one). The lawyer in Otero was the only lawyer present in the courtroom for the hearing, which was an administrative hearing covering several detainees. Because hearings are so secretive, it’s impossible to know whether there have been any final hearings since Tuesday in which migrants have been denied asylum despite Bashant’s ruling and ordered deported.
Because the Trump administration doesn’t formally acknowledge asylum-seekers until they are allowed to enter the ports, it’s unknown how many people were waiting at the border when the regulation took effect, or how many of them are still trying to make a case before a judge. But ProPublica’s reporting at the time found 5,500 migrants were on the waiting list in Ciudad Juárez, Mexico, when the regulation went into effect. Even more were on the list in Tijuana, Mexico, where border officials admitted very few asylum-seekers in the weeks before the regulation took effect. Other locations along the border had waiting lists that stretched into the hundreds.
When the regulation came down, those who were finally allowed to enter found themselves barred from asylum. In Tijuana, those migrants had been waiting since early April; in Ciudad Juárez, they’d been waiting two to three months. But because the U.S. didn’t officially recognize them as asylum-seekers until they set foot on U.S. soil, it did not count them as “attempt(ing) to enter” before July 16.
In Tuesday’s ruling, Bashant disagreed. Migrants who “were required, pursuant to the Government’s policy, to wait their turn in Mexico,” she wrote, had still “intended to apply for asylum at a U.S. (port of entry)” before the regulation was implemented. “Their understanding of the process, under the law that existed at the time of they sought asylum at the southern border, was correct.”
Bashant’s order is a preliminary injunction, which is supposed to temporarily stop the Trump administration from applying the asylum ban to the metered migrants until the judge more fully reviews the legal arguments. It’s part of a bigger lawsuit filed in 2017 arguing that metering itself is illegal.
