President Donald Trump’s efforts to limit asylum challenged in federal courts

Alan Gomez | USA TODAY

Show Caption Hide Caption Trump blocks asylum claims for migrants who enter illegally President Trump signed an order blocking asylum claims for migrants who enter illegally.

President Donald Trump’s efforts to dramatically cut asylum applications were challenged in two federal court hearings on Monday, and the rulings by each judge will ultimately determine how many members of the migrant caravan will be able to enter the U.S.

Hundreds of the Central American caravan members have already arrived in the Mexican border city of Tijuana, prompting U.S. Customs and Border Protection officials on Monday to temporarily close all vehicle lanes and half the pedestrian lanes at the San Ysidro Port of Entry to install additional concrete barriers and concertina wire to prevent a rush of people trying to enter illegally.

But the two judges — who did not issue any immediate rulings — will decide whether caravan members will be able to legally request asylum, a right written into U.S. law and international conventions the U.S. is party to. The Trump administration has taken unprecedented steps in recent months to challenge those rules, cutting back on who can apply and how they can apply.

Trump has been largely silent on the migrant caravan heading to the border since making it a major campaign issue in the midterm elections. But has blasted the migrant caravan in recent days via Twitter.

“Isn’t it ironic that large Caravans of people are marching to our border wanting U.S.A. asylum because they are fearful of being in their country - yet they are proudly waving their country’s flag. Can this be possible? Yes, because it is all a BIG CON, and the American taxpayer is paying for it!” he tweeted Saturday night. And on Sunday, he tweeted again about the caravan, siding with Tijuana Mayor Manuel Gastélum:

“The Mayor of Tijuana, Mexico, just stated that ‘the City is ill-prepared to handle this many migrants, the backlog could last 6 months.’ Likewise, the U.S. is ill-prepared for this invasion, and will not stand for it. They are causing crime and big problems in Mexico. Go home!” he tweeted.

On Monday, he sent out a series of tweets boasting about his policy changes and how they will ensure that caravan members are “detained or turned away.”

Catch and Release is an obsolete term. It is now Catch and Detain. Illegal Immigrants trying to come into the U.S.A., often proudly flying the flag of their nation as they ask for U.S. Asylum, will be detained or turned away. Dems must approve Border Security & Wall NOW! — Donald J. Trump (@realDonaldTrump) November 18, 2018

But the ACLU, which is leading both lawsuits, says the recent changes are clear violations of U.S. law and hope to win victories in both court cases.

"President Trump’s new asylum ban is illegal," said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. "Neither the president nor his cabinet secretaries can override the clear commands of U.S. law, but that’s exactly what they’re trying to do."

Asylum is a form of protection granted to people who fear persecution in their home countries based on their race, religion, nationality, membership in a particular social group or their political opinion. From 2000 to 2016, the United States granted asylum to an average of 26,651 foreigners a year, according to Department of Homeland Security data.

The number of asylum applications has skyrocketed in recent years, from 5,000 in 2008 to 97,000 in 2018, mostly fueled by Central Americans fleeing violence and poverty in their home countries.

That increase is partly what prompted the administration to implement two big changes that are now being challenged in Monday's court hearings.

The first hearing took place in Washington, D.C., where the ACLU and other groups filed a challenge to the administration’s efforts to narrow the grounds that migrants can use to qualify for asylum.

In June, then-Attorney General Jeff Sessions announced a new policy asserting that victims of domestic abuse and gang violence would no longer qualify for asylum. The lawsuit claims the administration sidestepped U.S. law and implemented its own standards, distorting the asylum process "beyond recognition."

The second hearing took place in San Francisco, where the ACLU and other groups filed a challenge to the administration’s efforts to limit the process migrants can use to put in their asylum claims.

Up until Nov. 9, migrants could request asylum either by presenting themselves at a port of entry or entering the country illegally and then requesting asylum.

The 1965 Immigration and Nationality Act states that any foreigner who arrives in the USA, "whether or not at a designated port of arrival," may apply for asylum. A United Nations treaty signed in 1951 by the United States says "refugees should not be penalized for their illegal entry" because extreme situations sometimes "require refugees to breach immigration rules."

But on Nov. 9, Trump tried to overrule those rules, signing a presidential proclamation ending the ability of migrants to request asylum if they enter the country illegally. The administration is relying on the same legal rational it use to implement its controversial travel ban targeting majority-Muslim countries — a section of U.S. law that allows a president to suspend entry of foreigners if deems them "detrimental to the interests of the United States."

The first two versions of the travel ban were shot down in court, but the third was upheld by the Supreme Court. The administration believes that decision gives it the authorization it needs to use that statute more broadly, including in its effort to limit asylum.

Neither judge issued a ruling from the bench, but could issue their opinions any time. Their options include upholding Trump's restrictions, which would likely draw an appeal from the ACLU, or ordering a preliminary injunction blocking Trump's rule changes and allowing migrants to continue applying for asylum, which would likely draw an appeal from the Department of Justice.