Trump's 'death to asylum' rule is blocked before it takes effect

The final rule was a last-ditch attempt in the administration's effort to curb refugees from Central America seeking asylum.
The final rule was a last-ditch attempt in the administration's effort to curb refugees from Central America seeking asylum.PHOTO: AFP

SAN FRANCISCO (BLOOMBERG) - The Trump administration's final attempt to restrict United States 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 (Jan 11).

US District Judge James Donato in San Francisco on Friday agreed with immigrant-rights lawyers that acting Homeland Security Secretary Chad Wolf lacked 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 the judge'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 immigration law professor at the University of Southern California Niels Frenzen.

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 US 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 US, or was unlawfully in the US 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," Mr Frenzen said, adding that the scope of this rule "would bar many, perhaps most claims from Central America, which is the intent". Representatives of the Justice Department didn't immediately respond to a request for comment on the ruling after regular business hours.

Judge 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.

"The government is running the same eight-track tape and the music isn't getting any better," Judge Donato told US lawyers at a hearing Thursday on the bid for a preliminary injunction. "Four judges have said this wrong and you haven't appealed. You don't go to another judge with the same argument."