District Court Judge Sets Immigration Policy, Again

Latest Presidential Proclamation Enjoined in Northern California

By Andrew R. Arthur on November 20, 2018

In a November 9, 2018 post, I synopsized the mass migration presidential proclamation and asylum interim final rule issued by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) on that date. In essence, together, the proclamation and rule render ineligible for asylum aliens who enter the United States illegally, between the ports of entry. The purpose of the two was to channel aliens claiming credible fear to the controlled and orderly ports of entry for "credible fear" processing. On November 19, 2018, however, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California issued a nationwide temporary restraining order of that rule in East Bay Sanctuary Covenant v. Trump. That order is indicative of the problems associated with nationwide injunctions in the field of immigration.

Interestingly enough, the plaintiffs in that case were not aliens claiming credible fear, but rather "legal and social service organizations." There are issues with respect to the standing of those organizations, not the least of which is the fact that they argued "the Rule causes them injury because it impairs their funding, frustrates their missions, and forces them to divert resources to address the Rule's impacts." Respectfully, under that standard, almost any organization could have standing to challenge an immigration rule that restricts eligibility for relief.

Of greater interest, however, is the claim of those organizations that "the Rule is inconsistent with the statute." Or, as the court described it:

Does Congress's grant of rulemaking authority in [section 208(b)(2)(C) of the Immigration and Nationality Act (INA)] permit the Attorney General to adopt a categorical bar to asylum eligibility based on a characteristic the Congress specified does not impact an alien's ability to apply for asylum?

Some background is necessary to explain that order. First, section 208(a)(1) of the INA states:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section [235(b) of the INA].

A plain reading of this provision would appear to allow an alien who enter the United States illegally to seek asylum, and prevent the president, DOJ, and DHS from precluding those aliens from seeking that protection.

In section 208(b)(1)(A) of the INA (captioned "Eligibility"), however, Congress delineated the class of aliens who are "eligible" for asylum:

The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of [section 101(a)(42)(A) of the INA].

Congress set forth list of aliens who were categorically not eligible for asylum in section 208(b)(2)(A) of the INA, including aliens who are persecutors, dangers to the security the United States, or described in the terrorism grounds of inadmissibility and deportability.

Congress did not seek in that provision to constrain the class of aliens who are ineligible for asylum, though. Instead, in section 208(b)(2)(C) of the INA, Congress stated:

The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under [section 208(b)(1)].

It was this authority that DOJ and DHS utilized in the interim final rule to render ineligible for asylum an alien:

[S]ubject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order.

On November 9, 2018, in fact, the White House issued a Presidential Proclamation Addressing Mass Migration through the Southern Border of the United States. It suspends and limits entry into the United States by aliens who enter after that date illegally, between the ports of entry. The purpose of the proclamation is to channel aliens without entry documents who are claiming credible fear in order to seek asylum to the ports of entry.

In his order in East Bay Sanctuary Covenant, Judge Tigar asserted: "Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter." He noted, however:

Defendants contend that even if Congress unambiguously stated that manner of entry has no effect on an alien's ability to apply for asylum, it can be the sole factor by which the alien is rendered ineligible. . . . The argument strains credulity. To say that one may apply for something that one has no right to receive is to render the rights to apply a dead letter. There simply is no reasonable way to harmonize the two.

Significantly, however, the court's finding is similar to an argument that was rejected by the Supreme Court in Trump v. Hawaii. There, the president had utilized his authority in section 212(f) of the INA (authority also utilized in the presidential proclamation at issue in East Bay Sanctuary Covenant) to limit the entry of nationals of specified countries of concern. The plaintiffs in Hawaii asserted that the president's actions violated section 202(a)(1)(A) of the INA, which states:

Except as specifically provided in paragraph (2) and in sections [101(a)(27), 201(b)(2)(A)(i), and 203 of the INA], no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

The Supreme Court in Hawaii held:

[W]e reject plaintiff's interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section [212 of the INA] defines the pool of individuals who are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission) into the United States. First, any alien who is inadmissible under [section 212 of the INA] (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as "ineligible to receive a visa." [Section 221(g) of the INA]. Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States "if, upon arrival," an immigration officer determines that the applicant is "inadmissible under this chapter, or any other provision of law"— including §1182(f). §1201(h).

Sections [212(f) and 202(a)(1)(A) of the INA] thus operate in different spheres: Section [212 of the INA] defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once [section 212] sets the boundaries of admissibility into the United States, [section 202(a)(1)(A) of the INA] prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which [section 202(a)(1)(A)] does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the "issuance" of "immigrant visa[s]," without mentioning admissibility or entry. Had Congress instead intended in [section 202(a)(1)(A)] to constrain the President's power to determine who may enter the country, it could easily have chosen language directed to that end.

Respectfully, the same is true in section 208 of the INA. Had Congress intended in section 208(a)(1)(A) of the INA to render aliens who  entered illegally eligible for asylum (with the exception of the specific restrictions in section 208(b)(2) of the INA), it could have done so. It did not, and in fact designated an entirely different subsection for eligibility for asylum, and then gave the Attorney General and the Secretary of Homeland Security authority in section 208(b)(2)(C) of the INA to "establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under" section 208(b)(1) of the INA.

Similarly, Judge Tigar's finding is inconsistent with the manner in which the bars in section 208(b)(2) of the INA are applied. Aliens who are convicted of aggravated felonies (and therefore barred from asylum under section 208(b)(2)(B) of the INA) are generally considered by immigration judges only for the remaining forms of protection, that is, withholding of removal under section 241(b)(3)(A) of the INA and protection under Article 3 of the Convention Against Torture.

Often, however, the determination of whether an alien is ineligible for an asylum because the alien is described in the terrorism grounds of inadmissibility and deportability, is a danger to the security of United States, or is a persecutor is not made until after the alien has actually applied for asylum. Thus, the distinction between the ability of an alien to apply for asylum and the eligibility of the alien for asylum are two separate determinations.

This is a subject on which I speak with a level of experience. As a trial attorney, Associate General Counsel with the former Immigration and Naturalization Service (INS), and acting chief of the INS' National Security Law Division, I was involved in scores of such cases. Generally, the alien-applicant was removable on some general ground of removability (such as entry without inspection, or overstaying a nonimmigrant visa), and it was only in the adjudication of eligibility for asylum that the exceptions in section 208(b)(2)(A) of the INA were applied.

Again, respectfully, not only is there a way to "harmonize" a distinction between the ability to apply for asylum under section 208 of the INA and an alien being barred from eligibility for that protection, but they are two separate determinations in many cases.

In his order, Judge Tigar also agreed with the plaintiffs' argument that the government violated the notice-and-comment provisions in the Administrative Procedures Act (APA), 5 U.S.C. § 553.

In the interim final rule, DOJ and DHS relied on two exceptions to the notice-and-comment provisions, the "good cause" and "foreign relations" exceptions.

With respect to the first, DOJ and DHS asserted:

While the [APA] generally requires agencies to publish notice of a proposed rulemaking in the Federal Register for a period of public comment, it provides an exception "when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. 553(b)(B). This exception relieves agencies of the notice-and-comment requirement in emergency situations, or in circumstances where "the delay created by the notice and comment requirements would result in serious damage to important interests."

* * * *

The Departments have concluded that the good-cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this rule. Notice and comment on this rule, along with a 30-day delay in its effective date, would be impracticable and contrary to the public interest. The Departments have determined that immediate implementation of this rule is essential to avoid creating an incentive for aliens to seek to cross the border during prepromulgation notice and comment under 5 U.S.C. 553(b) or during the 30- day delay in the effective date under 5 U.S.C. 553(d).

Judge Tigar rejects the underlying premise for the government's reliance on the good-cause exception, that is "that knowledge that the government was proposing to restrict asylum would encourage more asylum seekers to cross illegally in the interim." He admits: "As a matter of social psychology, this makes some intuitive sense." He ultimately rejects that conclusion, however, finding in essence that "migrants seeking asylum in the United States" would be unaware of the impending rule or the "ability to adjust their behavior."

For third time, respectfully, this finding is belied by the caravan that is at least one of the driving forces behind the proclamation and final rule, and experience with the credible-fear process itself. As the interim final rule notes:

The total number of aliens of all nationalities referred to expedited-removal proceedings has significantly increased over the last decade, from 161,516 aliens in 2008 to approximately 234,534 in FY 2018 (an overall increase of about 45%). Of those totals, the number of aliens from the Northern Triangle [countries of El Salvador, Honduras, and Guatemala] referred to expedited removal proceedings has increased from 29,206 in FY 2008 (18% of the total) 161,516 aliens referred) to approximately 103,752 in FY 2018 (44% of the total approximately 234,534 aliens referred, an increase of over 300%). In FY 2018, nationals of the Northern Triangle represented approximately 103,752 (44%) of the aliens referred to expedited-removal proceedings; approximately 91,235 (39%) were Mexican; and nationals from other countries made up the remaining balance (17%). As of the date of this rule, final expedited-removal statistics for FY 2018 specific to the southern border are not available. But the Departments' experience with immigration enforcement has demonstrated that the vast majority of expedited-removal actions have also occurred along the southern border. Once in expedited removal, some 97,192 (approximately 41% of all aliens in expedited removal) were referred for a credible-fear interview with an asylum officer, either because they expressed a fear of persecution or torture or an intent to apply for protection. Of that number, 6,867 (7%) were Mexican nationals, 25,673 (26%) were Honduran, 13,433 (14%) were Salvadoran, 24,456 (25%) were Guatemalan, and other nationalities made up the remaining 28% (the largest proportion of which were 7,761 Indian nationals). In other words: Approximately 61% of aliens from Northern Triangle countries placed in expedited removal expressed the intent to apply for asylum or a fear of persecution and triggered credible-fear proceedings in FY 2018 (approximately 69% of Hondurans, 79% of Salvadorans, and 49% of Guatemalans).

The court makes no findings that conditions in the Northern Triangle countries have become exponentially worse over the past 10 years. Rather, the logical conclusion to be drawn from the increase of nationals of those countries being placed in expedited-removal proceedings and claiming credible fear is their belief that doing so represents a reasonable means of gaining access to the United States. Contrary to the court's findings, this suggests that "migrants seeking asylum in the United States have" access to information relating to the consequences of illegal entry and the "ability to adjust their behavior" accordingly.

With respect to the "foreign policy" exception, the government argued that this exception applies "because the Rule is 'linked intimately with the government's overall political agenda concerning relations with another country.'" The court accepted "for the purposes of argument that the Rule was part of the President's larger coordinated effort in the realm of immigration." Judge Tigar found, however, that the government's "argument reduces to the need for speed and flexibility in the President's ongoing negotiations with Mexico and other countries," but found that the government had failed to explain "how limiting notice and comment would assist the United States and its negotiations."

For fourth time, respectively, had Judge Tigar followed the news, perhaps he would be better informed. As early as October 17, 2018, USA Today reported:

The government of Mexico dispatched two 727 Boeing planes filled with federal police officers to its southern border with Guatemala on Wednesday to intercept a caravan of Central American migrants who are trying to reach the U.S. border.

More recently, on November 14, 2018, Reuters stated: "The Mexican government has urged the migrants to register for asylum in Mexico, or risk deportation. President-elect Lopez Obrador has vowed to provide jobs and visas to the Central Americans."

Large numbers of third-country nationals transiting Mexico on their way to the United States plainly has an impact on the foreign relations between the two countries. The Rule, which seeks to stem that flow, would lessen that impact, and potentially make Mexico more amenable to entering into a safe-third-country agreement, such as that between the United States and Canada. For a fifth time, respectfully, this is just common sense, or at least common sense for those familiar with immigration.

Finally, Judge Tigar references the "numerous harms" to which potential asylum seekers are exposed while waiting in Mexico to present their claims it ports of entry, "including . . . physical privations like physical assault." There is no doubt that Tijuana, where many third-country nationals seeking to make credible-fear claims are encamped, is a dangerous city. One Mexican organization found that it was the fifth most dangerous city in the world in 2017.

Notably, however, the interim final rule specifically identified even greater dangers as one of the reasons for the rule being promulgated without going through notice-and-comment rulemaking, stating:

There continues to be an "urgent need to deter foreign nationals from undertaking dangerous border crossings, and thereby prevent the needless deaths and crimes associated with human trafficking and alien smuggling operations."

With respect to this statement, Judge Tigar asserts:

The Rule contains no discussion, let alone specific projections, regarding that degree to which it will alleviate these harms. On the other side of the scale, the court must weigh the extensive record evidence of the danger experienced by asylum seekers waiting to cross in compliance with the Rule.

I have detailed the dangers associated with illegal alien smuggling in separate posts: one from July 2018, and an updated one from October 2018. As I stated in the second post:

On October 23, 2018, the White House put out a press release, supported by facts from a major non-governmental organization, that underscores the perils of that journey.

Captioned "By The Numbers: Understanding The Border Crisis Being Driven By Congressional Democrat Backed Loopholes", that press release largely focuses on the recent surge of immigrants (and in particular children and families) across the Southwest border, and the so-called "catch-and-release" loopholes that have fueled that surge.

Included in that press release, however, are some shocking facts. Specifically, it states:

Smugglers and traffickers exploit these loopholes to prey on families and children who make the life-threatening journey north to our border.

More than two-thirds of those making the journey north become victims of violence along the way, according to a report by Doctors Without Borders.

Nearly one-third of women are sexually assaulted along the journey according to that same report.

The report referenced in that press release by Doctors Without Borders (commonly known by its French acronym "MSF") is captioned "Forced to Flee Central America's Northern Triangle, A Neglected Humanitarian Crisis". As its title suggests, it is not the most glowing representation of U.S. immigration policy. It is extremely clear-eyed, however, as it relates to the hazards of illegal travel from Central America through Mexico to the United States.

Among the findings in that report:

—68.3 percent of the migrant and refugee populations entering Mexico reported being victims of violence during their transit toward the United States.

— Nearly one-third of the women surveyed had been sexually abused during their journey.

— MSF patients reported that the perpetrators of violence included members of gangs and other criminal organizations, as well as members of the Mexican security forces responsible for their protection.

Dissuading aliens from undertaking this dangerous journey (which the interim final rule would, for a sixth time respectfully, do) is reason enough for that rule. I take no offense at the fact that a federal judge is not familiar with my writings. If that judge is to weigh the equities and the public interest of a rule, however, he or she should know all of the facts.

The order in East Bay Sanctuary Covenant reflects the weaknesses in nationwide injunctions of immigration rules, proclamations, and orders. I have no doubt that Judge Tigar is a distinguished, and fair, jurist. Unfortunately, there is nothing that indicates that he has any particular expertise in the field of immigration, or that he fully appreciates the ramifications of his order, or totally comprehends the rationale behind the presidential proclamation and the Rule.

Rather, to the degree that Wikipedia is a reputable source, the vast majority of Judge Tigar's career (24 of 28 years) has been spent practicing "complex commercial litigation at the law firm Keker & Van Nest" and "as a judge on the Alameda County Superior Court." And yet, by dint of his unelected position as a federal judge, he has the authority to shut down a proclamation and interim final rule relating to immigration with foreign-policy, and human, consequences.

Inevitably, as with most of the president's immigration proposals, the Supreme Court will likely have the final word on the proclamation and rule. The Court would be wise at that time to heed the recommendation of Justice Thomas in Hawaii, when he stated:

I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

There is no time like the present, and no case like East Bay Sanctuary Covenant.