U.S. District Judge Susan Illston granted Thursday a Temporary Restraining Order which blocks a Trump administration rule that would add a new set of disqualifications for asylum eligibility.
Last month the Department of Justice and Department of Homeland Security finalized a new rule that would add a new set of disqualifications for those seeking asylum, set to take effect Nov. 20.
The new disqualifications would bar anyone who has been convicted of drunk driving, marijuana possession and those who the Attorney General or Secretary “knows or has reason to believe” was involved in any kind of “criminal street gang” activity. Asylum seekers could also be denied if they were accused of domestic violence even if there was no conviction, according to the finalized rule.
The rule would also eliminate regulations that allow for an automatic review of an asylum claim when the applicant is denied asylum but is protected from being removed from the U.S., as stated in the rule. (RELATED: Few Asylum Seekers Have Legitimate Claims, Latest Data Indicates)
Asylum is granted to those who present a credible fear claim that proves they fear they will suffer persecution on the basis of their race, religion, nationality, membership to a particular social group or political opinion in their home country.
Illston noted that while adding crimes to the list with “goals of promoting the efficiency of asylum proceedings, discouraging lawless behavior, and protecting the community from danger” wasn’t “problematic in and of themselves,” the real issue is “that the Rule sweeps too broadly.”
Pangea Legal Services, a California-based immigration legal service provider, sued federal agencies Nov. 2 arguing the rule violated the Immigration and Nationality Act (INA) and that the new bars were vague, according to Thursday’s order.
Meanwhile Defendants argue that the INA gives the Attorney General and Secretary of Homeland Security broad discretion over asylum, and that they can adopt new categorical limits on asylum eligibility as long as they are consistent with existing statute.
Illston ruled that the court “is persuaded by plaintiffs’ arguments that the new categorical bars to asylum eligibility are contrary to the statutory language and exceed the authority conferred on the Attorney General.”
She noted that while Congress gives the Attorney General the power to designate an offense as one that would disqualify an asylum seeker if the offense is a “particularly serious crime,” the department’s defense of the new rules relied on Section 8 U.S.C. 1158(b)(2)(C), which gives the Attorney General the ability to add “additional limitations and conditions” consistent with the serious crime bar.
The new criminal bars on asylum are blocked!
Here’s a key passage, saying that because Congress gave the AG authority to designate “particularly serious crimes” which block asylum, he can’t establish parallel criminal bars through a general authority to impose restrictions. https://t.co/cNJPvwPiTs pic.twitter.com/KerZxqM0GI
— Aaron Reichlin-Melnick (@ReichlinMelnick) November 19, 2020
However, Illston ruled this particular section doesn’t give the Attorney General the authority to add “offenses that will render someone ineligible for asylum.”
Illston also granted the Temporary Restraining Order because the new rule is contrary to congressional carve-outs.
The new rule would prevent asylum seekers from being granted asylum if they were convicted of bringing in or “harboring” illegal migrants and doesn’t create an exception for first time offenders. However, Illston notes that Congress has created an exception that if a person has a one-time offense for assisting their own spouse, child or parent then they are exempt from being disqualified.