The President may not rewrite immigration law to impose conditions forbidden by Congress.
With this in mind, US District Judge Jon Tigar in San Francisco issued a temporary restraining order (TRO) on Monday, this week against the proclamation issued by President Donald Trump earlier this month.
That proclamation would have denied the possibility of asylum to anyone who enters the US illegally, seemingly contradicting existing law that allows any person the right to seek asylum, regardless of how that person entered the country.
President Trump had cited national security as his reason for issuing his proclamation, specifically aimed at a caravan of would-be immigrants from South America now attempting to make their way to the US via Mexico.
The American Civil Liberties Union led advocacy groups seeking to block Mr. Trump’s decree through the proper legal channel.
Judge Tigar’s TRO lasts until early next year, but the Trump administration is expected to move swiftly to lift the order.
In justifying his order, the judge said, “Asylum seekers will be put at increased risk of violence and other harms at the border, and many will be deprived of meritorious asylum claims. The government offers nothing in support of the new rule that outweighs the need to avoid these harms.”
Mr. Trump has referred to the South American caravan as “an invasion” and ordered the military to support immigration officials at the US-Mexico border. He has even suggested without offering proof that Middle Easterners were part of the caravan.
While some had dismissed the president’s sending of soldiers to the border as little more than a political stunt intended to coincide with the mid-term elections earlier this month, others pointed out that the Armed Forces – comprised of the Army, Navy, Air Force and Marines – are not allowed to fight on US soil unless there is an actual armed invasion by an enemy state.
The caravan are almost entirely made up of civilians including women and children who are from Honduras, Guatemala and El Salvador, all fleeing persecution, violence and poverty.
Under international law, asylum seekers exposed to serious fear of persecution are considered as refugees. The US is legally obligated to at least process applications for asylum, which the Trump proclamation had sought to dispense with.
Besides hunger and dehydration, those who have joined the caravan believed to number around 5,000 also face the dangers coming from well-organized drug gangs and people traffickers, the very harms that Judge Tigar referred to in his TRO.
While some in the caravan are reportedly seeking asylum in Mexico, the majority are hoping to enter the US where they can land jobs and establish legal residency. But only if the Trump proclamation is permanently deemed to be patently illegal.
In all likelihood, the case will be elevated to the Supreme Court. As for Judge Tigar, he can consider himself to now be in the crosshairs of President Trump, a potential target of tweets questioning his love of country as well as his knowledge of the law.