It is timely that the able Judge published his ruling this very afternoon — and perhaps not coincidental, since Texas (and Gov. Abbott) argue that if one doesn’t cross at a port of entry, one cannot claim our treaties’ protections. Poppycock. That has never been the law. Ever. [Thus, Abbott’s floating razor wire stunt is a violation of prospective asylees’ due process rights, and under color of state law… and so, lawyers will win civil damages from him, and Texas, for this.]
As we said back in May of 2023, this is but an echo — of a similar Trump attempt that the able judge invalidated, and ultimately the Supremes agreed with Judge Tigar. So it is unsurprising that Mr. Biden’s similar measure too now falls. [It disappoins me that he tried this — and I said so, in May, right here.] In any event, here’s the 35 page final opinion in full — just released to the public docket; and a bit:
…Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with Section 1158. The Rule effectively conditions asylum eligibility on whether a noncitizen qualifies for any of three exceptions — presenting at a port of entry, having been denied protection by another country in transit, and having parole-related travel authorization — or can show exceptionally compelling circumstances. . . .
The agencies can only condition asylum eligibility based on these factors if doing so is consistent with Section 1158. Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158. Under binding Ninth Circuit precedent, conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress as expressed in Section 1158. Entry V, 993 F.3d at 671 (“[T]he [Entry] Rule is substantively invalid because it conflicts with the plain congressional intent instilled in [Section] 1158(a), and is therefore ‘not in accordance with law.’”) (quoting 5 U.S.C. § 706(2)(A)); Transit V, 994 F.3d at 976 (“We hold, independently of Chevron, that the [Transit] Rule is not ‘consistent with’ [Section] 1158.
We note, however, that we would come to the same conclusion even if we were to apply Chevron, for the Rule is contrary to the unambiguous language of [Section] 1158.”). Section 1158(a) permits noncitizens to apply for asylum regardless of whether or not they arrive at a designated port of entry; a rule that conditions eligibility for asylum on presentment at a port of entry conflicts with Section 1158(a). Entry V, 993 F.3d at 669–70. The safe-third-country and firm-resettlement bars, 8 U.S.C. § 1158(a)(2)(A), (b)(2)(A), “specifically address[] the circumstances in which an alien who has traveled through, or stayed in, a third country can be deemed sufficiently safe in that country to warrant a denial of asylum in the United States”; conditioning asylum eligibility on having been denied protection in transit is not consistent with these bars….
Now you know — and Judge Tigar will be vindicated, again, on appeal. The defendants have already appeal to the Ninth Circuit. But they will… lose. Again. Onward.
नमस्ते
As of Sunday afternoon, Betsy Stauffer has yet to comment on the Tangerine’s superseding indictment counts; and has failed to mention the looming third set of felony charges.
