screengrab from https://abc13.com/video/embed/?pid=4688400

Despite what CNN may have told you, there are literal caravans composed of several thousand alleged asylum seekers, mostly from Centeral America, heading to the United States. One of those is now parked in Tijuana, presumably enjoying the night life and planning its next move.

In order to prepare for the onslaught, President Trump issued an emergency order, followed by an announcement of rule-making in the Federal Register, that only aliens who enter the US through recognized ports of entry would be allowed to apply for asylum. You can read the Federal Register announcement for yourself, the rule does not change the general way in which asylum seekers are processed and is focused specifically on the threat from the caravans. This. of course, brought the open-borders and anti-Trump groups out and gave an Obama-appointed federal judge in California the opportunity to wage lawfare against the administration.

A federal judge on Monday ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States, dealing at least a temporary setback to the president’s attempt to clamp down on a huge wave of Central Americans crossing the border. Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally. “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Mr. Tigar wrote in his order. As a caravan of several thousand people journeyed toward the Southwest border, President Trump signed a proclamation on Nov. 9 that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Only those who entered the country through a port of entry would be eligible, he said, invoking national security powers to protect the integrity of the United States borders.

And naturally, because the power of federal district judges is without limits, a San Francisco based judge ruled that his ruling had effect nationwide.

There are any number of problems (insert my IANAL caveat here) with the reasoning and process here. It is hard to understand how the ACLU and SPLC were given standing to sue to pre-emptively stop the regulation from going into force. Even with the travel ban, the named plaintiffs were people who had suffered alleged harm. The larger problem is that the reasoning used by the judge, that 8 U.S. Code § 1158 is somehow required to be literally interpreted under all conditions runs in the face of the “wet foot-dry foot” policy used in regards to Cuban refugees where refugees who were apprehended in transit–even at the very low tide line in Florida–were summarily returned to Cuba where they faced certain imprisonment.

Like so many other actions carried out the #Resistance using their judicial allies, I suspect that eventually this will be resolved in the favor of the administration and of executive authority to respond to a crisis not anticipated by Congress when they wrote the law.

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