Immigrant Groups Sue Over New Trump Rule That Would Bar Most Asylum-Seekers From the U.S.

People wait in line to enter a temporary shelter for Central American migrants in Tijuana on Nov. 20, 2018. (David Maung/KQED)

Four immigrant advocacy groups based in California sued the Trump administration on Tuesday in federal court in San Francisco to block a new rule barring migrants from pursuing asylum if they traveled through another country — on their way to the U.S. — without seeking protections there first.

Attorneys with the American Civil Liberties Union, which represents the groups, argued that what’s known as the third-country rule was “arbitrary and capricious,” and violated U.S. immigration law because protections “cannot be categorically denied based on an asylum-seeker's route to the United States.”

The departments of Justice and Homeland Security announced the new rule on Monday and it took effect on Tuesday. The policy aims to reduce the influx of Central American migrants seeking refuge at the southern border, which officials say is overwhelming the country's immigration system. Exceptions are included for people who were denied protection claims elsewhere, were victims of human trafficking, or have traveled through countries that have not signed major international treaties.

When asked about the lawsuit by KQED, Homeland Security declined to comment and the Justice Department didn't respond.

"The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border," Attorney General William Barr said Monday in a statement announcing the new policy.

Top officials with the administration maintain "loopholes" in current laws allow asylum-seekers to be released into the U.S. while their claims are decided by a judge — a process that can take years.

The third-country rule comes just days after a widely publicized Immigration and Customs Enforcement operation to arrest and deport 2,000 migrants was set to begin in major cities. Mass arrests have yet to materialize in the San Francisco Bay Area or other California cities.

The Trump administration was trying to circumvent the asylum process established by the U.S. Refugee Act, which was passed by Congress in 1980, said Daniel Sharp, legal director of the Central American Resource Center in Los Angeles — one of the groups suing.

"It's an attempt to rewrite four decades of asylum law by a rule that the administration is issuing without even a public comment period," said Sharp, adding that his organization has represented thousands of asylum-seekers since its inception in 1983.

But John Eastman, a law professor at Chapman University in Orange, said the changes were lawful.

"The Immigration and Nationality Act gives the attorney general very explicit authority to impose such conditions as he thinks are warranted," he said.

He agreed with Trump administration officials that effectively blocking most asylum claims going forward will help unclog a growing backlog of immigration court cases, and take pressure off border authorities managing overcrowded facilities.

"I applaud the administration for trying to take some action to deal with it," Eastman said.

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Between 2017 and 2018, asylum applications increased by nearly 70%, according to government figures. U.S. border officials arrested significantly more parents with children in the last nine months than at any time since 2013, when the agency began tracking family units. Many of those seeking asylum at the southern border say they are fleeing extreme violence and poverty in their home countries, as well as government inaction in terms of addressing these issues.

Most migrants waiting outside the San Ysidro Port of Entry in Tijuana on Monday didn't know about the new rule.

Tony, from Cameroon, who didn’t want to use his last name because he feared for his safety, said refugees wouldn’t want to apply for asylum in Mexico.

"You can’t say that refugees should apply for asylum in Mexico," he said. "Because first of all, they don’t feel protected from the police."

Bill Hing, who directs the immigration and deportation clinic at the University of San Francisco, said that with the new rule, the U.S. would violate its responsibilities under international law to protect asylum-seekers who make it to the southern border.

International law does not require migrants to seek protections in a country they don't consider safe, said Hing.

"The main issue that a federal court is going to decide is: Can they require someone to apply for asylum in a third country before that person gets to apply for asylum in the United States," he added.

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The Department of Homeland Security, which oversees Customs and Border Protection, didn't respond to questions about how the rule will be implemented by CBP officers — or whether they'll start turning away asylum-seekers who do not qualify for protections under the new rule.

“This will be implemented in accordance with all applicable laws, regulations and policies, as well as international agreements," a DHS official said in a statement.

Central Americans who seek asylum in the U.S. have to travel to the southern border, said Hing, because it's impossible for them to apply for the protections from their home countries.

In 2017, the Trump administration ended an Obama-era program that allowed thousands of minors in El Salvador, Guatemala and Honduras to apply for humanitarian protections and join their parents in the U.S.

"There is no such thing as going to the U.S. Embassy in any of those three Northern Triangle countries and applying for asylum now," said Hing, adding that U.S. embassies don't have the authority to grant the protections.

Hing added that it's "unrealistic" for the U.S. government to require migrants to apply for — and be denied — humanitarian protections in countries like Mexico before pursuing claims in the U.S. An asylum rejection from the Mexican government, Hing said, often comes with a deportation order, so migrants might face additional hurdles to travel to the U.S. border to start another asylum application here.

Sen. Dianne Feinstein said the new rule was "not only illegal, it's heartless and cruel."

“These families are fleeing some of the most violent, dangerous countries in the world such as El Salvador, Guatemala and Honduras," she said in a statement. "Allowing them to seek protection in the United States isn’t a loophole, as the president says and Republicans continue to repeat, it’s a fundamental part of what makes us American."

This post has been updated. KPBS reporter Max Rivlin-Nadler contributed to this report from Tijuana, Mexico.

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