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US Judge Tosses Bulk Of Suit Against Trump Immigration Move

A line of asylum-seekers wait at the Pedwest crossing in Tijuana, Oct. 25, 2018.
Milan Kovacevic
A line of asylum-seekers wait at the Pedwest crossing in Tijuana, Oct. 25, 2018.
US Appeals Court Won't Immediately Allow Trump Asylum Ban
US Appeals Court Won't Immediately Allow Trump Asylum Ban GUEST: Dan Eaton, partner, Seltzer, Caplan, McMahon, Vitek

The Ninth Circuit is President Trump's Least Favorite court of appeal. And on Friday it once again ruled against an administration policy by a two to one vote. A three judge panel ruled that the administration cannot enforce a ban on asylum claims from immigrants who crossed the southern U.S. border illegally. President Trump issued the proclamation in early November in response to the caravan of migrants arriving at the U.S. Mexico border. The Ninth Circuit upheld a lower court's temporary restraining order saying the president's policy ran counter to existing U.S. law. And joining me is attorney Dan Eaton. Dan welcome back. Thank you. Good to be with you Maureen. What existing law were the Ninth Circuit judges referring to the existing law under the Immigration and Nationality. It says that an immigrant may apply for asylum which is by the way a designation that used to escape persecution for your political views or your race or religion. A person can apply for asylum if they are in the United States regardless of whether they entered through a designated port or entry now. So what did this rule do that adopted the president's proclamation both of which were issued on November 9th of this year. What it said that if you enter through a place other than a designated port of entry where you're subject to examination you are not going to be eligible categorically for asylum. You're going to be denied that. What the Immigration Nationality Act seemed to suggest is that if you apply it doesn't matter for asylum where you're trying to seek protection from persecution. It doesn't matter where you entered from the southern most border of Mexico or anyplace else. You've got to be given some sort of consideration. That's ultimately what the Ninth Circuit said. The president appears to have violated because we're at a preliminary stage right now because he seems to be saying categorically if you enter through a place other than a designated port of entry you're not getting asylum. Says Congress said otherwise. And the president can't override what Congress said. Now in the majority opinion Judge Jay Bybee wrote about how the President's Proclamation circumvents Congress. Well that's right. And what's interesting about that is because the President's proclamation which I understand was incorporated into the rule that was put forward by the by the federal agency the Department of Homeland Security specifically said Well we're focusing on the eligibility for asylum. We're not talking about the application for asylum. That was one of the basic arguments. Basically what the president and his lawyers argued was anybody can apply for asylum if they don't enter through a designated port of entry. We're talking about eligibility. That's where we're focused and what the 9th Circuit said was No. If you're saying that anyone who applies is categorically excluded from having eligibility that renders it pretty much a dead letter and you can't do that. Judge Jay Bybee made a comment about being told often by conservatives that judges should not legislate from the bench. Why did he have to say. Well what he said was look the law has been clear for at least 60 years that you can't cross the Mexican border at any place other than a port of entry. What he said was that when the proclamation said that they were categorically ineligible for asylum which of course is separate from the mere crossing. The president was circumventing the law that says that you can apply regardless of your designated point of entry. The Ninth Circuit ruling Judge Bybee wrote the proclamation attempts to accomplish one thing in a combination with a rule it does indirectly what the executive cannot do directly amend the Immigration and Nationality Act just as we may not as we are often reminded legislate from the bench. Neither may the executive legislate from the Oval Office which is what Judge Bybee was talking about because it said it's already illegal to cross the Mexican border at a place other than a designated port of entry. What the president seemed to do was take another step in categorically exclude them from asylum if they entered that. And that said Judge Bybee is in conflict or appears to be in conflict at this preliminary stage with the Immigration and Nationality Act. The dissenting opinion on the 9th Circuit though is a little bit semantic. It has to do with what different words mean. Can you tell us about that. Yeah and that's really the key. What the dissent said was look the application for asylum is dealt with in one place. The eligibility for asylum is dealt with in a different place in the Immigration and Nationality Act. This rule and presidential proclamation don't deal with application. Anyone can apply for it. But the dissent said this deals with eligibility and the attorney general has broad authority to impose additional limitations in this case by adopting the presidential proclamation that disqualifies eligibility for asylum. If a person enters through other than a designated port of entry and is subject to the examination that is given when you enter through a designated port of entry. This all stems from a lower court judge ruling judge named John Tyger he ruled that existing law is clear on the issue. His ruling prompted a tweet argument between President Trump and U.S. Supreme Court Chief Justice John Roberts. Remind us about that. It was actually a fascinating back and forth because what happened was President Trump suggested that Tiger issued this ruling because somehow he was an Obama appointee in response to an Associated Press request for comment. The chief justice of the United States John Roberts said we don't sit as Obama judges or Bush judges or what have you. We sit as judges as impartial arbitrary arbiters of the law and that is how we do our job and then of course President Trump responded back to the chief justice rejecting his or his view of how judges decide cases. But it was an important point about the separation of judges a separation of powers and how judges perform their role differently from those in the political branches namely Congress and the president himself. Most of these executive branch issues are appealed until they get to the U.S. Supreme Court. Do you expect this to be headed there as well. I do and I and I don't expect the president to wait for the full 9th Circuit on bank rolling if you will to to consider this and I'm not sure that he's going to wait for it to go back to Tiger for further examination of whether there is for example an exception for the notice requirements that the people who sued to block this rule what he's probably going to do is seek immediate review by the United States Supreme Court. That would be unusual but not unprecedented in the Supreme Court very well could take this up right away. So Dan legally where does that leave asylum seekers who may have crossed into the U.S. illegally. Does established law remain in place until the president's new policy goes through the courts. Well it does because the rule and the President's Proclamation have been blocked by the courts at this point. It takes a while between application and granting of asylum. So as a practical matter it means these applications are going to continue to go forward whether they're ultimately granted will depend on whether this role and presidential proclamation are upheld by the court. I've been speaking with Attorney Dan Eten partner with the San Diego firm of Selsor Captain McMahon and Vi tech. And Dan thank you. Thank you Maureen. Good to be with you.

The Trump administration provided adequate justification for its decision to end a program that reunited hundreds of immigrants from Central America with family members in the U.S., a federal judge ruled Monday.

Magistrate Judge Laurel Beeler threw out the bulk of a lawsuit that argued the termination of the Obama-era Central American Minors program was arbitrary and violated the U.S. Constitution.

The program allowed parents legally in the U.S. to apply to bring children or other family members living in Honduras, Guatemala or El Salvador to the U.S.


One of the goals was to discourage children from making the dangerous journey from those countries to the U.S. to be with family.

More than 1,300 people came to the U.S. under the program between 2014 and the end of 2016, according to figures cited in Beeler's decision.

RELATED: Working While They Wait, Migrants Seek Jobs At US Border

When it ended the program in August 2017, the Trump administration revoked approval for roughly 2,700 additional immigrants who were set to travel to the U.S.

In her ruling, Beeler said the decision to revoke those approvals was arbitrary and capricious and required more analysis and explanation.


Linda Evarts, an attorney with the International Refugee Assistance Project who is representing plaintiffs, said she welcomed that part of the ruling and called the decision "an important first step."

Beeler in a separate order suggested the plaintiffs might be able to revise their lawsuit to address some of her concerns.

The judge, however, found the administration had sufficient policy and legal arguments for its decision to end the Central American Minors program.

The Obama administration granted refugee or parole status to 99 percent of the people it interviewed for the program, giving them a greenlight to come to the U.S., according to State Department figures in Beeler's decision.

The Trump administration argued that immigration law called for a more sparing, case-by-case approach. It also said granting parole broadly created an incentive for illegal immigration and contributed to security problems along the U.S.-Mexico border.

Beeler said the administration rationally concluded that the program was not consistent with its immigration policy and its view of immigration law. She said she was not authorized to second-guess those conclusions.

She also rejected arguments that the decision to end the program violated due process and equal protection.