Trump’s Asylum Solution Under Fire

IRLI defends rule to make Mexico a first refuge for asylees

WASHINGTON – At every turn, activist groups have tried to hamper President Trump’s efforts to solve the crisis at the border. Now, on multiple fronts, they are taking aim at the administration’s latest initiative: a new rule issued by the Department of Homeland Security (DHS) making aliens who pass through Mexico on their way to the United States ineligible for asylum in this country if they failed to apply for asylum in Mexico first.

In a trio of friend-of-the-court briefs in three separate courts, including the U.S. Supreme Court, the Immigration Reform Law Institute (IRLI) shows that these activist groups lack standing to challenge this rule (known as the Transit Rule), and that, in any event, the rule is fully in accord with the text and purpose of the asylum statute.

Last week, in federal district court in the District of Columbia, IRLI filed a brief in two related cases in which migrant rights groups are challenging the Transit Rule. The groups claim they will have to spend their donors’ money trying to help migrants affected by the rule, and therefore have standing to seek an injunction against it. IRLI shows that this claim of standing rests on thin air; the groups cannot have standing to sue under the asylum statute based on injuries that have nothing to do with the purpose of that statute.

Today, IRLI filed a brief in the Ninth Circuit Court of Appeals, which is hearing the federal government’s appeal of an earlier injunction of the Transit Rule by the U.S. District Court for the Northern District of California.

In the same case, on Tuesday of this week, IRLI filed what may be the most important brief of the three, in the Supreme Court, supporting the government’s application for an emergency stay of the Northern District of California’s injunction. If the Supreme Court grants the stay, the Transit Rule will remain in effect as the cases against it wind their way through the courts – and the Trump administration will have a chance to make headway in ending the border emergency.

In all three briefs, IRLI emphasizes not only the plaintiffs’ lack of standing – and thus the courts’ lack of jurisdiction – but also the substantive validity of the Transit Rule itself.

In the asylum statute, Congress gave the executive branch flexibility to suspend eligibility for asylum in the national interest. Here, the national interest is pressing, as thousands of economic migrants, the vast majority of them without valid asylum claims, are routed through an overburdened system and disappear into the U.S.

The transit rule also recognizes the purpose of the asylum system, which is to give people refuge from tyranny in their home countries. It is no part of that purpose that this refuge has to be in the United States, as opposed to a third country, such as Mexico, that the aliens arrive in first.

“We are under zero obligation to give asylum to an endless stream of economic migrants from Central America and around the world just because they would rather live here than in Mexico,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Even while recognizing that, the administration’s rule fully protects true asylees from danger in their home countries. We are confident that the Supreme Court, in light of the urgency of the public interest in overcoming the severe crisis at the border, will let the rule take effect now, and that the courts will ultimately uphold it as a responsible exercise of DHS’s clear statutory authority.”

The cases are Capital Area Immigrants’ Rights Coalition, No. 1:19-cv-2117 (D.D.C.), I.A. v. Barr, No. 1:19-cv-2530 (D.D.C.), East Bay Sanctuary Covenant v. Barr, No. 19-16487 (Ninth Circuit), and Barr v. East Bay Sanctuary Covenant, No. 19A230 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]