On Friday, U.S. District Judge James Donato blocked the implementation of a new set of asylum restrictions from the Trump administration that had been set to go into effect on Monday.
Under the proposed new restrictions, asylum-seekers “seeking protections on the basis of gender or those who claim they were targeted by gangs, “rogue” government officials or “non-state organizations” would likely not be eligible for asylum,” The Associated Press explains, although each of these threats could clearly be tied to systematic political circumstances in certain countries. Although pandemic-related restrictions are currently in effect blocking most asylum claims, once these restrictions are removed, the planned additional restrictions would have remained in place, continuing to make the asylum process difficult for those seeking protection in the U.S.
Donato concluded that acting Secretary of Homeland Security Chad Wolf did not have the authority to impose the new asylum restrictions because his elevation to the top job at the department failed to follow legal protocol. This conclusion isn’t new — Donato’s ruling was the fifth occasion on which a court concluded that Wolf’s assumption of the role of chief of the Homeland Security department violated the legally established order of succession.
Donato wrote as follows:
‘The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.’
The Justice Department’s immediate plans regarding a potential appeal weren’t immediately clear — within a couple of weeks, the Biden administration will take over, and they’d no doubt seek to abandon the case if it remained ongoing. The Biden administration is already “expected” to undo Trump administration immigration policies like their forcing of some asylum-seekers to wait in Mexico while their case makes its way to court, the Associated Press reports.
Wolf’s original takeover as acting Secretary of Homeland Security followed Kevin McAleenan’s stint in the same position, which courts have concluded also violated the legal order of succession. McAleenan took over after Kirstjen Nielsen resigned from her position as Secretary of Homeland Security in 2019 — she was the last Senate-confirmed head of the department. With little time left in power, the Trump administration recently withdrew Trump’s nomination of Wolf to serve in the role in a Senate-confirmed, more official capacity.
Besides the restrictions on the kinds of persecution that would have been allowed to underlie a successful asylum claim under the blocked rules, immigration judges would also have been “directed to be more selective about granting asylum claims” and permitted “to deny most applications without a court hearing” under the proposed new restrictions, the Associated Press explains. Obviously, allowing the denial of “most” applications for asylum without even holding a court hearing would seriously undercut due process in the immigration system and punitively curtail the ability for persecuted foreigners to seek protection in the United States.
