Trump’s ‘Death to Asylum’ Overhaul Is Halted by U.S. Judge

The Trump administration’s final attempt to restrict U.S. asylum laws aimed at immigrants fleeing from oppression -- coined “death to asylum” by its opponents -- was blocked by a federal judge before it was to go into effect Monday.

U.S. District Judge James Donato in San Francisco on Friday agreed with immigrant-rights lawyers that acting Homeland Security Secretary Chad Wolf lacked the authority to promulgate the rule, which would make it difficult if not impossible to qualify for asylum. It will be up to the incoming Biden administration to decide whether to appeal Donato’s preliminary injunction.

“The new administration could in theory accept the court’s ruling, stop defending the lawsuit, and agree to withdraw the rule on the basis of there never having been any authority to promulgate it in the first instance,” said Niels Frenzen, an immigration law professor at the University of Southern California.

The final rule, officially called Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, was published Dec. 11 and was a last-ditch attempt in the administration’s four-year effort to curb refugees from Central America seeking asylum in the U.S. Immigrant-rights groups sued to prevent it from being implemented because, they said, it would “gut the asylum system.”

The rule, for example, would deny asylum to an applicant who has already proven eligible if, absent extraordinary circumstance, she failed to file a tax return, spent more than 14 days in any one country while en route to the U.S., or was unlawfully in the U.S. for more than a year cumulatively, according to the Dec. 21 complaint by Pangea Legal Services and other groups.

“Death to asylum is not an exaggeration,” Frenzen said. The scope of this rule “would bar many, perhaps most claims from Central America, which is the intent.”

Read more: Trump Administration Loses Appeal Over Asylum Restrictions

Representatives of the Justice Department didn’t immediately respond to a request for comment on the ruling after regular business hours.

Donato followed at least four other federal judges who in recent challenges to different DHS rules found that Wolf lacked authority as acting Secretary of Homeland Security because his nomination in November 2019 was never confirmed by the Senate.

“This court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” the judge said in his decision. “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not.”

The now-halted asylum overhaul is part of the Trump administration’s “relentless efforts to close our doors to migrants and here, in particular, to refugees escaping persecution, even as the administration’s days wane,” Omar Gonzalez-Pagan, an attorney for Lambda Legal, one of the groups that sued, said in a statement.

“The rule is rooted in xenophobia and cruelty,” Gonzalez-Pagan said. “Lives are at stake and we are relieved that the court has put this abhorrent policy on hold while we continue to make our case.”

The cases are Pangea Legal Services v. U.S. Department of Homeland Security, 20-cv-09253, and Immigration Equality v. U.S. Department of Homeland Security, 20-cv-09258, U.S. District Court, Northern District of California (San Francisco).

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