A federal appeals court in Washington sounded skeptical Monday of President Donald Trump’s proclamation effectively ending asylum in the United States, during oral arguments over a lower court ruling that found the president exceeded his authority under an immigration law.
A three-judge panel on the U.S Court of Appeals for the District of Columbia Circuit was weighing a lawsuit from the American Civil Liberties Union and other groups challenging the proclamation Trump issued shortly after taking office in January.
Two of the judges asked questions about requirements under the Immigration and Nationality Act that the United States allow asylum-seekers to make requests to stay in the United States.
Judge J. Michelle Childs, a Biden appointee, said certain provisions under immigration law work in concert and a president can’t override one to execute another.
“How do we reconcile the proclamation’s ban on asylum with the rest of the INA?” Childs said. “I’m thinking, particularly, you know, for the example, there’s certain provisions that mandate a credible fear interview, and they also established judicial review for those asylum decisions.”
Childs told Drew Ensign, deputy assistant attorney general for the Office of Immigration Litigation of the Civil Division, that the government’s entire argument seems “disconnected from the text of the INA.”
Lee Gelernt, deputy director at the ACLU Immigrants’ Rights Project, picked up on that point during his argument for the challengers.
“I think that’s the whole case here, really,” Gelernt said. “It’s that this is an internally coherent statute which Congress has put together the pieces. And what’s ultimately happening here is that the administration doesn’t like the way Congress has put together the pieces. But Congress has put together the pieces.”
In July, Judge Randolph Moss of the U.S. District Court for the District of Columbia blocked implementation of the proclamation despite acknowledging “enormous challenges” in enforcing immigration law and adjudicating the backlog of asylum claims.
During Monday’s arguments on the government’s appeal of that ruling, Ensign said Trump’s proclamation was a “permissible exercise” of provisions of immigration law that grant the president authority to restrict entry of noncitizens into the United States under certain circumstances.
Ensign said the D.C. Circuit previously rejected arguments about the right to apply for asylum in a decision that partially upheld Title 42, a March 2020 order Trump issued during his first term at the beginning of the COVID-19 pandemic that kept migrants from entering the United States.
“We think that same result needs to obtain here, and nothing has changed in the interim,” Ensign said.
Judge Cornelia Pillard, an Obama appointee, questioned whether the Title 42 ruling would apply to Trump’s order against asylum, since that case sought to resolve two conflicting statutes, but the pending case was solely about immigration law.
“Here we have only the INA, and so it’s to say there’s a conflict is to say that you disagree with the way that Congress integrated these different provisions,” Pillard said.
Ensign said the Title 42 case “ultimately relied” on immigration law and the president’s power to expel foreign nationals.
Judge Justin Walker, a Trump appointee, said the Title 42 decision was “pretty silent” on the regulatory scheme for what the procedures needed to look like for illegal entrance.
Some of Walker’s questions focused on ways the decision should be limited. He pointed out that a class-wide injunction would be too broad because it would apply to asylum applicants in future and not just individuals in the United States.
“Imagine someone in the Amazon jungle who had no contact with anyone outside their tribe,” Walker said. “I mean, the district court has issued a class-wide injunction that covers someone that far removed from people with actual imminent injuries?”
Gelernt said a potential class-wide injunction is “not that different than a normal class that has future members.” A ruling that would limit the scope of injunction, Gelernt said, would be untenable because “it can’t be … that we have to come back to court each time someone comes to the U.S.”
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