A day after a federal judge denounced the former Trump adviser Michael Flynn, at a sentencing hearing, for lying to F.B.I. agents, the judge had a similar message on Wednesday for former Attorney General Jeff Sessions: Follow the law. It was one of two court decisions this week making clear that the administration was overstepping its powers to restrict the granting of asylum.
The ruling on Wednesday involved then-Attorney General Jeff Sessions’s decision in June to bar immigrants from seeking asylum based on their fears of domestic violence and gangs, basically putting them on a fast track for deportation back to the dangers they had fled. Mr. Sessions had said that “the mere fact that a country may have problems effectively policing certain crimes” shouldn’t be grounds for asylum.
The judge, Emmet Sullivan of the Federal District Court in Washington, all but accused Mr. Sessions of taking the law into his own hands. By creating a system that categorically denied these claims, the judge wrote, “the Attorney General has failed to stay within the bounds of his statutory authority.”
Federal law grants newly arrived migrants what is known as a “credible-fear screening” — an interview with an officer who determines whether the migrant has a credible fear of persecution in his or her native country. That is typically not a high bar to meet, and once a migrant clears it, he or she may remain in the United States as the asylum process continues.
But Mr. Sessions’s actions, which Judge Sullivan called a “sweeping policy directive,” raised the bar and sent ripples through the rest of the immigration bureaucracy. “Because it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies are unlawful,” Judge Sullivan said.
Judge Sullivan blew a fuse in open court this summer after learning that the administration had deported a woman and her daughter who were part of the case before a scheduled hearing. He ordered the plane carrying the plaintiffs turned back around. On Wednesday, Judge Sullivan ordered the administration to return six other plaintiffs, two of them children, who had been removed from the country under the Sessions decision before their asylum claims could be adjudicated.
In California, another judge struck another blow to the administration’s approach to asylum, landing more or less right where Judge Sullivan did.
Judge Jon Tigar, of the United States District Court in San Francisco, extended indefinitely an earlier ruling blocking President Trump’s barring of people who cross the border illegally from seeking asylum — a proclamation through which the president sought to rewrite asylum laws.
The law makes clear that anyone who is “physically present” or “arrives” in the United States, even if that person didn’t arrive “at a designated port of arrival,” is entitled to seek asylum.
But claiming without evidence that the recent caravan of hundreds of Central American migrants created a national security crisis, President Trump decided that only those presenting themselves at an official border crossing need apply.
That’s not the law, said Judge Tigar, who sounded a note of exasperation as he rejected arguments that the Trump administration had tried twice — once before him and once before the appeals court that reviewed his work this month.
He quoted from a ruling by one of those appellate judges, Jay Bybee, among the most conservative jurists in the United States Court of Appeals for the Ninth Circuit: “There surely are enforcement measures that the President and the Attorney General can take to ameliorate the crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.”
In the end, it may well fall to the Supreme Court to say what the law is in this Byzantine area. (On Friday, the justices, on a 5-to-4 vote, rejected a bid by the Trump administration to let the asylum ban go into effect.)
But lower courts can be instrumental in tempering the administration’s worst impulses on immigration — forcing officials to go back to the drawing board to come up with something more in line with existing laws and American values. That’s what happened during the protracted legal skirmish over Mr. Trump’s misbegotten travel ban — ultimately upheld, but not before the courts took away much of its bite.
For all the darts Mr. Trump has thrown at the courts and judges who don’t rule as he’d like, he may come to realize that they help set the course of our government.
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Home » Analysis & Comment » Opinion | Judges Check Trump’s Immigration Cruelty
Opinion | Judges Check Trump’s Immigration Cruelty
A day after a federal judge denounced the former Trump adviser Michael Flynn, at a sentencing hearing, for lying to F.B.I. agents, the judge had a similar message on Wednesday for former Attorney General Jeff Sessions: Follow the law. It was one of two court decisions this week making clear that the administration was overstepping its powers to restrict the granting of asylum.
The ruling on Wednesday involved then-Attorney General Jeff Sessions’s decision in June to bar immigrants from seeking asylum based on their fears of domestic violence and gangs, basically putting them on a fast track for deportation back to the dangers they had fled. Mr. Sessions had said that “the mere fact that a country may have problems effectively policing certain crimes” shouldn’t be grounds for asylum.
The judge, Emmet Sullivan of the Federal District Court in Washington, all but accused Mr. Sessions of taking the law into his own hands. By creating a system that categorically denied these claims, the judge wrote, “the Attorney General has failed to stay within the bounds of his statutory authority.”
Federal law grants newly arrived migrants what is known as a “credible-fear screening” — an interview with an officer who determines whether the migrant has a credible fear of persecution in his or her native country. That is typically not a high bar to meet, and once a migrant clears it, he or she may remain in the United States as the asylum process continues.
But Mr. Sessions’s actions, which Judge Sullivan called a “sweeping policy directive,” raised the bar and sent ripples through the rest of the immigration bureaucracy. “Because it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies are unlawful,” Judge Sullivan said.
Judge Sullivan blew a fuse in open court this summer after learning that the administration had deported a woman and her daughter who were part of the case before a scheduled hearing. He ordered the plane carrying the plaintiffs turned back around. On Wednesday, Judge Sullivan ordered the administration to return six other plaintiffs, two of them children, who had been removed from the country under the Sessions decision before their asylum claims could be adjudicated.
In California, another judge struck another blow to the administration’s approach to asylum, landing more or less right where Judge Sullivan did.
Judge Jon Tigar, of the United States District Court in San Francisco, extended indefinitely an earlier ruling blocking President Trump’s barring of people who cross the border illegally from seeking asylum — a proclamation through which the president sought to rewrite asylum laws.
The law makes clear that anyone who is “physically present” or “arrives” in the United States, even if that person didn’t arrive “at a designated port of arrival,” is entitled to seek asylum.
But claiming without evidence that the recent caravan of hundreds of Central American migrants created a national security crisis, President Trump decided that only those presenting themselves at an official border crossing need apply.
That’s not the law, said Judge Tigar, who sounded a note of exasperation as he rejected arguments that the Trump administration had tried twice — once before him and once before the appeals court that reviewed his work this month.
He quoted from a ruling by one of those appellate judges, Jay Bybee, among the most conservative jurists in the United States Court of Appeals for the Ninth Circuit: “There surely are enforcement measures that the President and the Attorney General can take to ameliorate the crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.”
In the end, it may well fall to the Supreme Court to say what the law is in this Byzantine area. (On Friday, the justices, on a 5-to-4 vote, rejected a bid by the Trump administration to let the asylum ban go into effect.)
But lower courts can be instrumental in tempering the administration’s worst impulses on immigration — forcing officials to go back to the drawing board to come up with something more in line with existing laws and American values. That’s what happened during the protracted legal skirmish over Mr. Trump’s misbegotten travel ban — ultimately upheld, but not before the courts took away much of its bite.
For all the darts Mr. Trump has thrown at the courts and judges who don’t rule as he’d like, he may come to realize that they help set the course of our government.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Source: Read Full Article