Activist Judge Halts Trump's Proclamation on Central American Asylum Seekers

Decision puts American lives in danger.

One single federal district court judge in San Francisco has temporarily barred the Trump administration from enforcing the president’s executive proclamation issued on November 9th to address the Central American migrant caravan crisis. The president’s proclamation, entitled “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States,” requires aliens to enter the United States solely through the official ports of entry if they wish to make a claim for asylum. The initial term of the proclamation is for no longer than 90 days. President Trump’s asylum proclamation cited his constitutional and statutory authority to deal with an impending security crisis at the nation’s southern border caused by “a substantial number of aliens primarily from Central America” who are “traveling in large, organized groups.” Many of these aliens, the proclamation noted, had “entered Mexico unlawfully — some with violence — and have rejected opportunities to apply for asylum and benefits in Mexico.” The proclamation should have easily passed legal muster. However, under U.S. District Court Judge Jon Tigar’s ruling, enforcement of the proclamation order is halted nation-wide. This means that aliens crossing the U.S. southern border with Mexico illegally, between the official ports of entry, are now immediately entitled to have their asylum claims heard. The judge’s order will remain in effect at least until December 19, 2018, unless there is a successful appeal.

President Trump predicted victory at the Supreme Court in getting Judge Tigar’s ruling overturned, whatever the ultra-liberal 9th Circuit does in the meantime. On the merits, President Trump has a good chance of succeeding if the case does end up with the Supreme Court. Judge Tigar clearly exceeded his judicial authority. He deliberately evaded the recent on point decision of the Supreme Court upholding the authority of the president of the United States to bar or restrict the entry of aliens into the United States as he deems necessary for national security reasons. Judge Tigar’s decision will place American lives in jeopardy if it is not quickly overturned.

However, despite the strength of President Trump’s case, he committed what has turned out to be an unforced error in describing Judge Tigar as an “Obama judge.” Chief Justice John Roberts issued a rare public rebuke on Wednesday against what he considered to be an attack on the integrity of an independent judiciary. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Justice Roberts said through a statement issued from the Supreme Court's press office. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” Instead of letting the matter go and leaving the response to Judge Tigar’s ruling in the hands of his lawyers, President Trump double downed. He tweeted, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

Offending the Chief Justice of the Supreme Court is not a recipe for success, no matter how strong a case the president has on the merits. And he does have a very strong case on both the facts and the law. There are already thousands of caravan aliens waiting at the border, with thousands more to arrive soon. Homeland security officials estimate that the group at the border includes more than 500 criminals. Imagine these criminals, and other aliens for whom there has been no vetting, dispersing in smaller groups to enter the country illegally at numerous locations along the 2000-mile southern border. Members of caravans committed violence in their clashes with Mexican soldiers and police, resulting in injuries, as they steamrolled into Mexico. Migrants already congregating en masse in the border city of Tijuana have met resistance from local Mexican residents, some of whom have decried the migrants’ presence as an “invasion.” The president’s proclamation correctly noted the public safety concerns from mass illegal entry into the United States, which warrants his immediate executive action to prevent. He sought to do so by temporarily directing would-be asylum seekers to legal points of entry for orderly processing of their claims.

Judge Tigar dismissed the incontrovertible security concerns underlying the president’s proclamation. Instead, the judge accepted the arguments of leftist activist groups, the Center for Constitutional Rights and the ACLU, who had challenged the president's proclamation in court as an unauthorized act. The attorney for the ACLU, which should more aptly be referred to as the Alien Caravan Lawbreakers Union rather than as the falsely named American Civil Liberties Union, declared, “The administration is trying to override what Congress has done.” Judge Tigar wrote in his 37-page ruling, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” Both were referring to a section in the federal immigration laws that specifically allows aliens crossing into the U.S. illegally between ports of entry to have their asylum claims heard so long as they are present on U.S. soil. Both have completely missed the mark. President Trump has ample legal authority to issue his proclamation.

Last June, the Supreme Court upheld President Trump’s presidential proclamation temporarily banning travel to the United States of foreign nationals from several countries considered to be prone to terrorism who cannot be adequately vetted, creating a potential threat to the national security of the United States. The decision properly deferred to the president’s unambiguous statutory authority under the following section of the Immigration and Nationality Act (8 U. S. C. §1182(f)): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (Emphasis added)

“By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States,” Justice Roberts wrote in the Supreme Court’s majority opinion. “By its terms, §1182(f) exudes deference to the President in every clause.”

President Trump issued his asylum proclamation dealing with the large groups of Central American aliens arriving at the U.S. border with Mexico under his broad §1182(f) authority. The president’s proclamation did not bar the aliens from entering the United States altogether. The president’s proclamation also did not render all the Central American aliens in the caravans as ineligible for asylum. It simply required asylum seekers to enter through the official ports of entry under restrictions he imposed in the national interest for only a limited time to prevent imminent chaos.

Judge Tigar decided, however, that §1182(f)) was irrelevant to the case before him.  He pointed to a specific statutory provision governing the rights of asylum seekers, which he concluded §1182(f) would not allow the president to expressly override. The statutory provision he relied upon for his decision was an amendment contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 providing rights to asylum seekers physically present in the United States, irrespective of their legal status or how or where they managed to enter the country. (8 U.S. Code § 1158(a)1) The aliens do not have to arrive at a designated port of entry to be eligible to apply for asylum in the United States under this provision, which Judge Tigar concluded President Trump’s asylum proclamation had violated.

Judge Tigar dismissed as irrelevant a separate statutory provision stating that an alien “who arrives in the United States at any time or place other than as designated by the Attorney General” is “inadmissible.”  In other words, under Judge Tigar’s pseudo-reasoning, we should disregard what Congress said in one statutory provision regarding the inadmissibility of an alien who does not enter the country legally and consider only a separate statutory provision that would reward a self-declared asylum seeker who has entered the country illegally. He made no effort, as judges are supposed to do, to reconcile seemingly conflicting statutory provisions in a reasonable manner. He ignored the practical difficulty of managing, in a fair and orderly fashion, the huge mass of alien migrants seeking asylum in the United States all at once – aliens who voluntarily refused the opportunity to apply for asylum in Mexico when they had a chance.  

Congress cannot provide for every contingency when it passes legislation. However, in the asylum rights provision relied upon by Judge Tigar, Congress did provide a "safe third country” exception. It established a mechanism for the removal of aliens who manage to get into the U.S. to another qualifying country with which the U.S. has entered into a formal agreement. That country must be one “in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Mexico is deemed to qualify as such a “safe third country.” In codifying this exception to the rights granted to asylum seekers who may have entered this country illegally, Congress recognized that aliens had no inherent right to choose wherever they wanted to go for asylum protection rather than the first country they reach that offers them asylum. Aliens do not have such an inherent right under international law either.

The United States is reportedly in negotiations with Mexico to reach a formal removal agreement so that asylum seekers in this country illegally can be sent to Mexico where they will be free to pursue their asylum claims instead. In the meantime, there is an urgent crisis at our border with Mexico. It is precisely to handle immigration crises directly affecting the security of the American people that Congress granted the president broad statutory authority under §1182(f) to issue his proclamation. Thousands of unvetted Central American aliens traveling together voluntarily chose in one fell swoop not to pursue their amnesty claims in Mexico when they were first given a chance. They have chosen to proceed to the United States. Congress certainly did not foresee, when it passed its asylum rights legislation, the resulting crisis at our nation’s border with Mexico that now threatens to overwhelm the U.S. system for asylum processing and spill over into violence.  President Trump’s proclamation was intended to address this immediate crisis, not to make any long-term changes in the nation’s immigration laws.

In sum, Judge Tigar acted recklessly. He evaded a Supreme Court precedent that was clearly applicable, intruding on the president’s statutory authority to limit the flow of aliens into this country as he deems necessary to protect “the interests of the United States.” The judge’s decision halting the enforcement of the president’s proclamation may well put American lives in danger. It must be overturned immediately. President Trump needs to avoid any further distractions and let his lawyers do the talking. 

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Photo: Gulf Times.

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