Justice Dept. to appeal order temporarily blocking new asylum restrictions

Pedestrians prepare to enter the U.S. at the San Ysidro port of entry shortly after it was re-opened on November 25, 2018 in Tijuana, Mexico. U.S. Customs and Border Protection temporarily closed two ports of entry on the border with Tijuana in response to a large group of migrants rushing past a police blockade towards the border. Around 6,000 migrants from Central America have arrived in the city with the mayor of Tijuana declaring the situation a ‘humanitarian crisis’. (Photo by Mario Tama/Getty Images)

WASHINGTON — The Department of Justice said Tuesday that it plans to appeal a temporary restraining order issued last week that blocks the government from categorically denying asylum to those who enter the US between official ports of entry.

Justice Department lawyers told the lower court judge, Jon S. Tigar of the US District Court for the Northern District of California, that the government will seek to appeal his order to the 9th US Circuit Court of Appeals and asked him to put his ruling on hold while the appeal is filed.

Tigar’s order, government lawyers argued, “directly undermines the President’s determination that an immediate temporary suspension of entry between ports of entry is necessary to address the ongoing and increasing crisis facing our immigration system.”

The move comes after President Donald Trump lashed out last week at Tigar, as well as the 9th Circuit, and said he would ultimately prevail in the case before the Supreme Court.

The American Civil Liberties Union responded immediately to the government’s request to put the ruling on hold. “We will vigorously oppose the stay request, so that people’s lives are not put in danger,” ACLU attorney Lee Gelernt, a lead lawyer for the challengers, said Tuesday.

When he issued his order on November 19, Tigar said the Trump administration policy barring asylum for immigrants who enter outside legal checkpoints “irreconcilably conflicts” with immigration law 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,” Tigar wrote, adding that asylum seekers would be put at “increased risk of violence and other harms at the border” if the administration’s rule is allowed to go into effect.

“Usually, an order like the temporary restraining order entered by Judge Tigar is not subject to immediate appeal,” said Steve Vladeck, a CNN legal analyst and University of Texas at Austin Law School professor. “Therefore, there is a question as to whether the government will even be allowed to file for an appeal in the first place,” he said.

The Department of Homeland Security and Justice Department had criticized Tigar’s ruling.

“Our asylum system is broken, and it is being abused by tens of thousands of meritless claims every year. … It is absurd that a set of advocacy groups can be found to have standing to sue to stop the entire federal government from acting so that illegal aliens can receive a government benefit to which they are not entitled,” Homeland Security spokeswoman Katie Waldman and Justice Department spokesman Steven Stafford said in a statement last week.

They argued that the President has the right to suspend entry by individuals into the United States if he determines it to be in the national interest.

“As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country. Further, asylum is a discretionary benefit given by the Executive Branch only when legal conditions are met and a favorable exercise of discretion is warranted,” Waldman and Stafford said in their statement. “It is lawful and appropriate that this discretionary benefit not be given to those who violate a lawful and tailored presidential proclamation aimed at controlling immigration in the national interest.”

The temporary restraining order is in effect nationwide.

The order is the latest setback for the administration, which has sought to crack down on what it says are flaws in the immigration system, and a victory for the ACLU, the Southern Poverty Law Center and other groups that argued it is illegal to block someone based on how they entered the country.

Human Rights First has also filed a lawsuit in the US District Court for the District of Columbia on behalf of six asylum seekers, including three children, who were barred from seeking asylum because they did not enter the US at an official border point.