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ACLU and Others File Lawsuit Against Trump Admin Over ‘Very Illegal’ Asylum Ban


It was only a matter of time, but it happened.

The American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC) and the Center for Constitutional Rights (CCR) filed a lawsuit on Tuesday in response to the Trump Administration’s newly published rule to end asylum protections for most Central Americans.

The key part of the rule scheduled to go into effect today; it applies to both adults and children:

[A]n alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum.

Law&Crime reported on Monday about this and additional context.

Omar Jadwat, the Director of the ACLU Immigrants’ Rights Project, called the Trump Administration’s asylum ban “absurd, unconscionable, & very illegal.”

These are Trump Administration officials being sued in their official capacities: Attorney General William Barr, Director of the Executive Office for Immigration Review James McHenry (EOIR), Acting Secretary of Homeland Security Kevin McAleenan, Acting Director of the U.S. Citizenship and Immigration Services Ken Cuccinelli (USCIS), Acting Commissioner of U.S. Customs and Border Protection (CPB) John Sanders, and Acting Director of Immigration and Customs Enforcement (ICE) Matthew Albence. The DOJ, ICE, Homeland Security, CPB, EOIR, and USCIS are also named as defendants.

Plaintiffs argued that the new rule violates both the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA); they seek an injunction.

“The Rule directly violates Congress’s clear requirement that for a noncitizen to be denied asylum because of his or her relationship with a third country, the noncitizen had to be firmly resettled in that third country or subject to a safe third country agreement, as well as Congress’s requirement that asylum cannot be categorically denied based on an asylum seeker’s route to the United States,” the filing said. “It is also arbitrary and capricious.”

If “arbitrary and capricious” rings a bell, that’s likely because multiple federal judges ruled that the 2020 citizenship question was just that. When the United States Supreme Court decided to block the citizenship question, it agreed that the Trump Administration’s rationale for adding the question seemed “contrived.” The plaintiffs in this case are making a similar argument.

“Among other reasons, the Rule is arbitrary and capricious because, in adopting it, Defendants have failed to articulate a reasoned explanation for their decision, which represents a change in the agency’s longstanding policy; considered factors that Congress did not intend to be considered; entirely failed to consider important aspects of the problem; and offered explanations for their decision that run counter to the evidence before the agency,” the filing said.

The plaintiffs also alleged that the Trump Administration’s rule disregards Congress’s “clear commands” on asylum.

Per the lawsuit:

Despite Congress’s clear commands, on July 16, 2019, the Attorney General and Acting Secretary of Homeland Security promulgated an interim final rule (“Rule”) providing that noncitizens who transit through another country prior to reaching the southern border of the United States are ineligible for asylum here. The Rule, which takes effect on July 16, has only three narrow exceptions, for those who applied for protection in a transit country and were denied it in a final judgment; who meet the definition of a “victim of severe form of trafficking in persons”; or who transited only through countries that are not parties to the 1951 Convention on the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture. Mexico, the only country adjoining the southern border of the United States, is a party to the 1951 Refugee Convention, the 1967 Refugee Protocol, and the Convention Against Torture.

The Rule thus bars virtually every noncitizen fleeing persecution from obtaining asylum in the United States if they passed through another country on their way here, no matter the conditions or purpose of their journey through that country or their prospect of protection, rights, or permanent legal status in that country.

You can read the 34-page filing below.

ACLU, SPLC asylum lawsuit by Law&Crime on Scribd

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Matt Naham is the Senior A.M. Editor of Law&Crime.