Ninth Circuit Court allows immigrants who had reached border to apply for asylum

Six months after the Supreme Court allowed the Trump administration to deny U.S. asylum to virtually all Central Americans at the Mexican border, a federal appeals court lifted the ban Thursday for thousands of immigrants who had already reached the border when the policy was announced in July.

The policy affects migrants from the violence-racked nations of Honduras, El Salvador and Guatemala. The administration had made them ineligible for asylum unless they had unsuccessfully applied for it in Mexico or another country they had passed through on their way to the United States. The government later reached an agreement with Guatemala to send Honduran and Salvadoran asylum-seekers to Guatemala, which has a minimal asylum system.

A federal judge in San Francisco blocked the asylum ban a week after it was announced, saying U.S. immigration law allows migrants fleeing persecution in their homeland to apply for asylum regardless of the route they had traveled. But the Supreme Court suspended the judge’s injunction in September in a 7-2 decision that leaves the ban in effect while it is being challenged in lower courts.

Thursday’s order involved a subset of migrants, those who had arrived at the U.S.-Mexico border before the asylum ban took effect and were delayed from applying for asylum by immigration officials’ “metering” policy, which requires them to wait many months before their applications can be heard. They are challenging the metering policy in a lawsuit, but became ineligible for asylum because they had not sought refuge in Mexico or another country.

A federal judge in San Diego issued a separate injunction in November allowing anyone who had reached the border before the policy took effect, and had been delayed by metering, to apply for asylum. The injunction applied to many of the 26,000 migrants who had reached the U.S. border by July.

The Ninth U.S. Circuit Court of Appeals in San Francisco suspended the injunction during the administration’s appeal but reinstated it Thursday in a 2-1 ruling.

Federal law allows a migrant who “is physically present in the United States or who arrives in the United States” to apply for asylum, Judge Marsha Berzon noted in the majority opinion. Citing a Republican congressman’s comments during committee hearings on the legislation in 1997, she said the law should be interpreted to include immigrants who were “in the process of arriving” when they were turned back by the Border Patrol and subjected to metering.

Those who arrived before the asylum ban was announced “relied to their detriment on the government’s representations” that they could eventually submit their applications in the United States and should not be disqualified by a policy that took effect later, Berzon said. She noted that Thursday’s order, denying a further stay of the injunction, would be in effect for only a few months while the panel considers the next steps in the case, and said it would not cause “undue hardship” to the government.

Her opinion was joined by Chief Judge Sidney Thomas, who like Berzon was appointed by President Bill Clinton. In a 69-page dissent, Judge Daniel Bress, an appointee of President Trump, said the majority was imposing a “radical and improper expansion of our asylum laws” that would worsen an “immigration crisis at our southern border.”

Bress contended that only migrants who had crossed the border were covered by the law allowing anyone who “arrives in the United States” to apply for asylum. He questioned the court’s authority to partially block a policy that the Supreme Court has allowed to take effect, and said it would be an “enormous and arduous task” for immigration officials to determine who was eligible to seek asylum.

Attorney Melissa Crow of the Southern Poverty Law Center, representing migrants and a support group that filed the suit, said the ruling was important for “the thousands of asylum-seekers who followed the ‘rules’ — rules we contend are illegal — and waited their turn, only to be told they were out of luck” when the new policy was announced.

The Justice Department did not immediately respond to a request for comment, but is likely to seek another stay from the Supreme Court.

*Story by San Francisco Chronicle