Appeals Court in San Francisco Weighs Third-Country Asylum Restrictions

A three-judge panel at the 9th U.S. Circuit Court of Appeals in San Francisco is considering the legality of a Trump administration policy that effectively bars most Central American migrants at the southern border from seeking asylum in the United States.

Under the administration’s so-called third-country rule, non-Mexicans are ineligible for asylum if they fail to apply for protection in a country they cross en route to the U.S., with very limited exceptions.

After an emergency request by the government, the U.S. Supreme Court temporarily allowed the asylum restrictions to be implemented in September, while the case is litigated in lower courts.

That ruling came after months of legal wrangling, with a federal judge in Oakland blocking the policy nationwide, and the 9th Circuit issuing a more limited injunction.

During a court hearing on Monday, the 9th Circuit examined whether the asylum restrictions violate federal immigration law. The appellate judges seemed skeptical of again halting the policy nationwide. But they also suggested the Trump administration had failed to adequately examine safety conditions for asylum-seekers in Mexico or Guatemala before issuing the third-country rule in July.

By law, the U.S. is not supposed to force asylum-seekers to go to countries where they fear persecution.

Judge Richard Clifton, an appointee of President George W. Bush, told U.S. Justice Department attorney Scott Stewart the government did not show a sufficient record that migrants in Mexico and Guatemala are safe and have access to full and fair asylum procedures.

“Safety, your honor, is not the primary point of the rule,” Stewart replied.

“It’s the primary point of asylum,” Clifton shot back.

Judge Eric Miller also pressed Stewart for evidence the departments of Justice and Homeland Security had grappled with the question of safety for Central American asylum-seekers in third countries.

“Where did you address the concern that Mexico really isn’t a safe place for people to apply?” asked Miller, who was appointed by President Trump.

Stewart argued the rule gives the U.S. “leverage” in ongoing diplomatic negotiations with foreign countries. He said the policy aims to tackle “unconstrained migration” and deter meritless asylum claims that the Trump administration says are clogging the immigration courts.

The third-country rule is part of a series of steps the Trump administration has taken to reduce the number of Central Americans crossing the southern border, a situation top officials call a humanitarian and national security crisis.

“People in many cases who are coming to claim asylum in our borders and gain years-long release into our country do not have urgent claims,” Stewart, a deputy assistant attorney general, told the judges. “They’re not even trying to get relief in other countries.”

The plaintiffs — four California-based legal aid and immigrant rights organizations — contend Central American asylum-seekers don’t apply for protections in countries like Mexico because they risk violence and extortion. Many Mexican cities and states along the U.S. border are among the most violent in the country.

But the 9th Circuit judges seemed to resist the notion that a nationwide block was warranted for the policy.

American Civil Liberties Union attorney Lee Gelernt argued the four plaintiff nonprofits — East Bay Sanctuary Covenant, Innovation Law Lab, Al Otro Lado and the Central American Resource Center — provide legal representation and guidance to a “significant number of people” who are applying for asylum across the country.

“Our plaintiffs would be hurt without a nationwide injunction,” Gelernt said.

Judge Clifton said he was “unpersuaded” by that justification.

“Just telling me that ‘Well, it’s gonna make it harder for my clients in other parts of the country’ … It’s kind of a thin soup,” Clifton said.

The number of asylum requests by migrants from El Salvador, Guatemala and Honduras has grown dramatically in recent years, according to government statistics.

Under U.S. law, asylum protects people who can demonstrate a “well-founded fear of persecution” in their home country based on race, religion, nationality, political opinion or membership in a particular social group.

The U.S. Department of Homeland Security did not immediately respond to a request for information on the number of people affected so far by the third-country asylum policy.

The case is expected to return to the U.S. Supreme Court.