Asylum ban doesn’t apply to potentially tens of thousands of migrants, federal judge rules

SAN DIEGO —  A San Diego federal judge on Tuesday ruled that the Trump administration’s so-called asylum ban does not apply to migrants who had already been waiting in line in Mexican border cities for their official chance to ask for protections in the U.S. when the policy took effect in mid-July.

The preliminary injunction affects potentially tens of thousands of migrants and will give them a chance to have their asylum claims heard.

In issuing the order, U.S. District Judge Cynthia Bashant emphasized she was not being asked to rule on the legality of the asylum ban — that question is being handled in other lawsuits — nor was she being asked to make determinations as to the merits of asylum claims. Rather, this was a question of whether the government was applying its own policy correctly.

In a strongly worded opinion, she concluded the administration had gotten it wrong.

The third-country asylum ban requires non-Mexican asylum seekers to first apply for protection in other countries that they passed through, such as Mexico. If they are denied, only then can they apply for asylum in the U.S.

In Mexico, migrants must apply for asylum within 30 days of arriving in the country.

When the policy went into effect on July 16, it clashed with another government policy, called “metering,” in which only a set number of asylum seekers are accepted formally into the U.S. on any given day. Typically, when asylum seekers arrive at the border, they are told to get on a wait list that is managed by various organizations in Mexico.

The wait can take several weeks, even months.

Suddenly, migrants who’d been turned back to wait under the U.S. “metering” policy were told that they were no longer eligible to be heard. For many, the 30-day window to apply for asylum in Mexico had already passed.

The judge said the asylum seekers relied on the government’s representations that if they returned and waited in Mexico as instructed, they would eventually have an opportunity to make a claim in the U.S. Later holding those migrants ineligible because of the asylum ban represents “a shift that can be considered, at best, misleading, and at worst, duplicitous,” Bashant said.

Attorneys for the government had argued that the asylum ban applies to all those who are arriving to the U.S. — officially entering the port of entry’s turnstiles — not those waiting in Mexico. But Bashant had already rejected that interpretation of “arriving” in an earlier order.

Instead, those who present themselves to border authorities even if they are turned away and told to wait should be considered in the process of arriving. Therefore, someone who arrived at the border in June but whose name was not called up on the list for entry into the U.S. until August should not be limited by the asylum ban, according to the preliminary injunction.

“The wording of the asylum ban is clear. ... The government’s position that the asylum ban applies to those who attempted to enter or arrived at the southern border seeking asylum before July 16, 2019 contradicts the plain text of their own regulation,” the judge wrote.

Bashant on Tuesday also provisionally certified a class to which the preliminary injunction applies: “All non-Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S. (port of entry) before July 16, 2019, because of the government’s metering policy, and who continue to seek access to the U.S. asylum process.”

It’s unclear exactly how many people are eligible for relief.

As of August, weeks after the asylum ban took effect, there were roughly 26,000 asylum seekers either on wait lists or waiting to get on those wait lists in 12 Mexican border cities, according to the migrant advocates who brought the case — Al Otro Lado, the Southern Poverty Law Center and the Center for Constitutional Rights.

In Tijuana, there were about 9,000 names on the list in mid-July, according to Al Otro Lado, which keeps close track.

The preliminary injunction is part of a broader lawsuit that accuses the government of unlawfully restricting access to the asylum system. The government has pointed to the crush of asylum seekers in recent years and an inability to handle them all at the the same time with the current resources.