The Legality of Barring Asylum Based on Entry Location: A Challenge to Immigration Rulemaking
Case: East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018).
Summary of the Substance and Outcome
This case centers on a critical question of U.S. immigration law: Can the federal government bar asylum eligibility based on where an immigrant enters the United States, even if they entered outside a legal port of entry? In November 2018, the Department of Justice and Department of Homeland Security issued a regulation (the “Rule”) making immigrants ineligible for asylum if they entered the United States outside a designated port of entry. This regulation was coupled with a presidential proclamation addressing “mass migration” through the southern border.
Four organizations representing asylum seekers challenged this rule, arguing that it violated U.S. immigration law, particularly the statutory provision allowing any immigrant physically present in the U.S. to apply for asylum, regardless of their method of entry. They also claimed the government failed to follow proper rulemaking procedures under the Administrative Procedure Act (APA).
Facts:
- The Rule, issued on November 9, 2018, barred asylum eligibility for individuals entering the U.S. outside legal ports of entry.
- On the same day, a presidential proclamation restricted entry at the southern border to designated ports, citing national security and resource concerns.
- Plaintiffs, including non-profits assisting asylum seekers, argued that the Rule contradicted immigration law (8 U.S.C. § 1158) and was improperly implemented without notice-and-comment procedures.
Analysis
The Ninth Circuit Court of Appeals denied the government’s motion to stay a lower court’s temporary restraining order (TRO) against the Rule. Key aspects of the court’s analysis included:
- Statutory Interpretation: The court found that the Rule likely violated immigration law. Congress explicitly allows asylum applications from immigrants “whether or not [they arrive] at a designated port of arrival.” The Rule undermines this statutory right by penalizing those who enter outside a port of entry.
- Agency Authority: While the Attorney General can establish asylum eligibility conditions, those conditions must align with the law. The court held that the Rule exceeded this authority.
- Procedural Violations: The Rule bypassed APA requirements for public notice and comment, which the government unsuccessfully argued was justified by the “good cause” and “foreign affairs” exceptions.
Outcome:
The decision temporarily halted enforcement of the Rule, preserving the right for immigrants to seek asylum regardless of entry location. The case underscored the separation of powers and the limits of executive authority in immigration law.
Conclusion:
The court maintained the TRO, preventing the Rule from being enforced. It concluded that the Rule likely conflicted with federal law, improperly limited asylum eligibility, and was enacted without proper procedural safeguards. The decision emphasized that executive actions cannot override Congress’s clear intent regarding asylum eligibility.
The dissenting judge argued that the Rule was a lawful exercise of the executive branch’s discretion to manage border crises and protect public safety, asserting that its process did not require notice and comment.
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