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A Tale of Two Asylum Decisions

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One Blocking an Unprecedented Trump Asylum Rule in a Transparent 45-Page Written Opinion and the Other, a new Trump-appointed Judge, Ruling in Favor of the Administration With No Written Opinion

Yesterday, two courts reached the opposite decision on whether to temporarily block the latest Trump administration attack on asylum law by regulation. The  regulation in question was issued and immediately implemented last week. It bars everyone,  including children, from applying for asylum on the southern border if they pass through a third country and fail to request asylum there.

In one of the decisions, a federal judge ruled and reasoned his decision in a transparent 45-page, reasoned and written opinion for the public to review. The decision temporarily blocked the regulation.

In the other decision, a federal judge issued an oral ruling from the bench with no written opinion or easily accessible transcript. It would have allowed the regulation to move forward immediately, if not for the fact it was overruled by the other decision.

The decision to temporarily enjoin the Trump administration regulation was issued in a federal court in San Francisco by Obama-appointee Judge Jon S. Tigar. He issued a 45-page written decision that took issue with the transparently lawless Trump administration’s regulation. In his decision, Judge Tigar wrote:

Congress has ensured that the United States will remove an asylum applicant to a third country only if that country would be safe for the applicant and the country provides equivalent asylum protections to those offered here. The Rule provides none of these protections.


The Rule purports to offer asylum seekers a safe and effective alternative via other countries’ refugee processes. As the Rule expressly contemplates, this alternative forum will most often be Mexico. But the government’s own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims.


While the public has a weighty interest in the efficient administration of the immigration laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat.


[A]n injunction would vindicate the public’s interest – which our existing immigration laws clearly articulate – in ensuring that we do not deliver aliens into the hands of their persecutors.

Hours earlier, in another court in Washington, D.C., the case was presided over by Trump-appointee Judge Timothy J. Kelly. Instead of a transparent, written decision for all the public to read and understand, Judge Kelly ruled from the bench. Without a written order or the availability of an accessible transcript, one had to be in the courtroom to understand the rationale for the decision. Alternatively, one had to rely on media reports — that suggested the judge deeply misunderstood or underestimated the harm this rule would cause.

Notwithstanding the clear record that legitimate asylum applicants would be exposed to harm in third countries, as noted in Judge Tigar’s decision, Politico reported on Judge Kelly’s decision this way:

Kelly said the plaintiffs in that case had not proved they would suffer irreparable harm as a result of the asylum ban. While Kelly acknowledged that the policy could have ‘far-reaching and significant effects,’ he noted the plaintiffs were merely service providers, not the migrants who would be directly subject to the ban. Even as such, he said, the plaintiffs failed to provide detailed evidence to show how the new policy would affect their work.

Kelly did not rule on the merits of the case, but suggested he would consider ‘severely strained’ immigration system when deciding the matter.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:

These dual decisions expose deep differences, not just in policy approaches to immigration and refugee challenges, but also in basic principles of transparency and accountability. In a case involving an extremely controversial, unprecedented and sweeping change in asylum law — by regulation that appears on its face to violate law passed by Congress — an Obama appointee issued a transparent 45-page, well-reasoned decision for all the public to see, while a Trump appointee swiftly, simply and in a non-transparent way batted away a serious complaint by plaintiffs with an oral ruling from the bench. In these two decisions — issued on the same day, made on two different coasts, and made by two judges appointed by two very different Presidents with very different approaches to immigration — the substantive and procedural differences couldn’t be clearer.

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:

The contrast between these two judges orders could not be more stark.  Judge Jon S. Tigar, an Obama appointee, issued a transparent 45 page decision explaining why he concluded Trump’s asylum rule violated the law and should be enjoined. Timothy Kelly,  a Trump appointee, issued the opposite decision orally from the bench, leaving the public to piece together his legal reasoning from press reports. A judge’s job is to hear the facts, apply the law and make a well reasoned impartial decision. In Tigar’s case the public can rest assured he did his job. In Kelly’s case not so much.