In a forceful ruling issued this week, a federal judge blocked the Trump administration’s attempt to use executive power to change asylum law duly enacted by Congress. This ruling temporarily enjoins a joint emergency regulation issued earlier this month by the Departments of Justice and Homeland Security to unlawfully deprive people who do not arrive at official border checkpoints the opportunity to apply for asylum, which they are entitled to seek under the law.
The following are key excerpts from the decision:
“The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden. Defendants’ claims that the rule can somehow be harmonized with the INA are not persuasive.
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Considering the text and structure of the statute, as well as the interpretive guide of the U.N. Protocol, reveals Congress’s unambiguous intent. The failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process. The Rule reaches the opposite result by adopting a categorical bar based solely on the failure to comply with entry requirements.
Defendants maintain that the Rule is nonetheless “consistent with” the statute. § 1158(b)(2)(C). First, 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. ECF No. 27 at 26-27. The argument strains credulity. To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter. There simply is no reasonable way to harmonize the two.
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Clearly, the Attorney General may deny eligibility to aliens authorized to apply under
- 1158(a)(1), whether through categorical limitations adopted pursuant to § 1158(b)(2)(C) or by the exercise of discretion in individual cases. But Congress’s judgment that manner of entry should have no impact on ability to apply necessarily implies some judgment that manner of entry should not be the basis for a categorical bar that would render § 1158(a)(1)’s terms largely meaningless. Basic separation of powers principles dictate that an agency may not promulgate a rule or regulation that renders Congress’s words a nullity. Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980) (“As we have held on prior occasions, [an agency’s] ‘interpretation’ of the statute cannot supersede the language chosen by Congress.”).
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Not only does the Rule flout the explicit language of the statute, it also represents an extreme departure from prior practice.
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Finally, Defendants suggest that, even if the manner of entry deserves little weight as a general matter, violation of a Presidential proclamation is of particularly grave consequence and is therefore distinct from an “ordinary” entry violation. The asserted distinction is not supported by evidence or authority. And if what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also. No court has ever held that § 1182(f) “allow[s] the President to expressly override particular provisions of the INA.” Trump v. Hawaii, 138 S. Ct. 2392, 2411 (2018).”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Once again, the Trump administration has attempted to unilaterally change the law duly enacted by Congress by executive fiat. As in many other cases, a federal court has had to step in to restore the rule of law and respect the constitutional separation of powers. This court ruling loudly affirms that under the Constitution, Congress — and not the President — enacts the law and the executive branch implements it.”
