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Key Trump Asylum Policies Are Tested In Appeals Court

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.

Attorneys for the Trump administration and the American Civil Liberties Union sparred Tuesday before a federal appeals court on two major policies that rewrite rules for seeking and getting asylum.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco heard arguments on a policy to make asylum seekers wait in Mexico while their cases wind through U.S. immigration courts. More than 42,000 people have been returned to Mexico since the policy took effect in January.

Another policy would deny asylum to anyone who crosses the border illegally from Mexico. The Supreme Court declined to lift an order blocking it from taking effect last year following an extraordinary spat between President Donald Trump and Chief Justice John Roberts.


The question before the judges — two appointed by President Bill Clinton and one by President Ronald Reagan — is whether to let the policies stay in effect while lawsuits proceed. They did not rule immediately.

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Judge William A. Fletcher, a Clinton appointee, sharply questioned a Justice Department lawyer on why immigration authorities don't ask asylum seekers if they fear being returned to Mexico, suggesting it violated international law. The government lawyer, Scott Stewart, responded that asylum seekers can raise concerns at any time, which didn't seem to satisfy the judge.

ACLU attorney Judy Rabinovitz pressed for additional steps before an asylum seeker is sent back to Mexico, including rights to consult an attorney or have a translator.

Backers of the policy, known officially as "Migrant Protection Protocols and colloquially as "Remain in Mexico," say it prevents asylum seekers from being released in the United States with notices to appear in court, which they consider a major incentive for more people to come. Critics say it has exposed asylum seekers to extremely dangerous conditions in violent Mexican border cities while they wait for court hearings.


Another appeals court panel granted the administration's emergency request to let the policy take effect in May. Since then, the government extended it to much of the border. The White House said last month that Vice President Mike Pence and Mexico's top diplomat, Marcelo Ebrard, agreed to expand it to "the fullest extent possible."

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The asylum ban on anyone who crosses the border illegally from Mexico also drew pointed questions from the judges, including whether it violated U.S. law that says it doesn't matter how people enter the country.

Trump and Roberts clashed last year after the president denounced a judge who ruled against him on the ban as an "Obama judge." Roberts said there was no such thing in a strongly worded statement contradicting Trump and defending judicial independence. Trump defended his own comment, tweeting defiantly, "Sorry Justice Roberts."

The Supreme Court ruled in Trump's favor last month by letting another asylum ban take effect, denying it to anyone who passes through another country on the way to the U.S. border with Mexico without first applying there.