Federal Court Rules Against Trump Administration On The “Third-Country Asylum” Rule

us district court logoIn Washington, U.S. District Judge Timothy J. Kelly has ruled against the Trump Administration in its important “third-country asylum rule”  — prohibiting undocumented immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border.  The ruling is yet another example of how basic failures to follow procedure or submit supporting evidence has hampered the rollout of major policy initiatives.  Kelly was not questioning the underlying deference to the Administration or the ultimate merits. Rather as in the recent loss before the Supreme Court under DACA (or the Deferred Action for Childhood Arrivals program), the court found that the government had failed to satisfy the minimal requirements of the Administrative Procedure Act, or APA. Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations.  It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.

In 2019, the Departments of Justice and Homeland Security revised 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum along the Southern Border if someone enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

The prohibition had three limited exceptions, including:

(1) an alien who demonstrates that he or she applied for protection from persecution or torture in at least one of the countries through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country;

(2) an alien who demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11; or,

(3) an alien who has transited en route to the United States through only a country or countries that were not parties to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The problem was that the rule was promulgated without satisfying the requirements of the APA which is governing federal law. Kelly stressed “There are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA exception is not one of them.”

Notably, such requirements take time but would not have likely changed the policy.

The APA requires, among other things, a notice and comment period.  Indeed, it is the best known part of the Act. The Administration, again,, short circuited the process and just dismissed that part of the law. It argued two exceptions. First, under the “good cause” exception, it argued that it did not have to provide notice and an opportunity to comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). Second, it argued under the “foreign affairs function” exception, the normal notice-and-comment requirements do not apply “to the extent that there is involved . . . a military or foreign affairs function of the United States.” Id. § 553(a)(1).

The problem is that the law in the area is clear.  This Circuit, like most, has taken the inverse perspective. When the scope of a change is greatest, so is the “the greater the necessity for public comment.” American Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).

What is notable is that the court states that, as in the DACA case, the Administration simply declined to submit support for the application of the exceptions. Thus, on the second exception, it stressed:

“The Court reiterates that there are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA exception is not one of them. As noted above, if engaging in notice-and-comment rulemaking before implementing the rule would have harmed ongoing international 47 negotiations, Defendants could have argued that these effects gave them good cause to forgo these procedures. And they could have provided an adequate factual record to support those predictive judgments to which the Court could defer.25 But they did not do so.”

Judge Kelly presents a cogent and convincing opinion on why the Administration cannot simply dismiss this requirement of federal law. Once again, however, this is a procedural not a substantive victory. This is a loss based on how a new policy was executed, not what that policy sought to achieve.  To put it simply, this is yet another self-inflicted wound.



33 thoughts on “Federal Court Rules Against Trump Administration On The “Third-Country Asylum” Rule”

  1. Trump and Pence regarding the Wall.
    Trump’s wife has convinced him to get off the ticket and retire to Mar A Lago.
    Pence will be the candidate at the top. Mister Pence: Build Up That Fence!

  2. “Brazil Delays Municipal Elections Amid Coronavirus Pandemic”

    – Bloomberg

    Election Postponement – Not A Vote By Survey Monkey

    President Trump must postpone the November election due to COVID-19, understanding that a fair and equitable election is impossible and that all other economic and social activities have been modified and/or suspended for reasons of the pandemic. To conduct a legitimate election, voters must appear and have their identity confirmed at a polling place. Democrats have already cancelled their convention. Communists (liberals, progressives, socialists, democrats, RINOs) are promoting “vote-by-mail” knowing that they will be afforded an historic opportunity to manipulate and defraud the vulnerable voting system. Communists (liberals, progressives, socialists, democrats, RINOs), in order to seize unfair advantages, absurdly propose that America surrender its self-governance to Survey Monkey. Communists (liberals, progressives, socialists, democrats, RINOs) employed our South Korean “allies,” K-pop, to enlist and encourage Tik Tok users to crash President Trump’s Tulsa rally. Communists (liberals, progressives, socialists, democrats, RINOs) “harvested” ballots to conquer Orange County, CA and other districts. Lincoln won 1860 with 38.9% and 1864 with brute military force. Joe Kennedy erased a Nixon victory and bought the presidency for JFK through Mob purchases in Chicago. Is it conceivable that the communists will not maximally corrupt and manipulate “vote-by-mail” to obtain a November victory? Of course they will. To communists (liberals, progressives, socialists, democrats, RINOs), the ends justify the means. No ethic, regulation, law, promise, duty or point of honor will ever prevent them from attempting to steal power. The essence of the Republic must be preserved at all costs, as Lincoln would say. President Trump must postpone the election due to COVID-19 until such time as the pandemic is in sufficient and quantifiable decline.

    Conditions of fair weather, health, peace and tranquility must be presumed for the holding of elections. The danger to the public of the chaos of civil unrest and a pandemic must require postponement of elections to preserve their accuracy. President Obama issued an executive order to override the authority of Congress with regard to immigration and DACA. President Trump must act similarly under current inimical and adverse conditions to preserve the integrity of U.S. elections.

  3. Mr Kurtz, Sonal Patel’s essay is about economics, not carbon. Anyway, metallurgical coal use is a tiny fraction of thermal coal use. Etc.

    As for fusion, there’s this overwhelming problem of a 12+ MEV neutron released, wrecking anything in its path. I view fusion power as unobtainable.

  4. And in other Trump legal news…
    Ted Boutrous: “Presiding Justice Scheinkman (Appellate Division) has lifted the TRO against Simon & Schuster restraining it from publishing Mary Trump’s book. The TRO remains in effect as to Ms. Trump, but we will be filing a brief in the trial court tomorrow explaining why it must be vacated.”

  5. Install spring boards on our side of the border wall. When they jump over they hit the board and get sprung back over the wall.

      1. Liberty2nd – I have suggested a couple of times that we fortify the border with mines and razor wire.

        1. Fire hoses. Blast em when they start climbing. Knock em off before they climb high do as to reduce injuries.

  6. Here is what Turley said. Read it and understand it please.

    “Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations. It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.”

    Trump is not a lawyer. Even if he was he would not be in charge of all these draftings. This one was almost certainly a FAIL that goes on Jeff Sessions, the failed AG prior to Barr. A fool who did not exercise power when he should have and allowed the Mueller farce to hamstring the President, who was obsessed with marijuana at a time when that was only he, and who initiated numerous immigration restrictions initiatives that are now failing badly, not due to lack of legal basis in theory, but flawed execution.

    Let’s not forget Sessions. A failed “ally” as are many of the other false friends of Donald Trump. Republican party is full of incompetents at the highest levels now just as it was in the past.

    I am a firm supporter of Donald Trump and he is indeed a “lone warrior.” Look at how all the country club loving suits supposedly on his side in DC have failed him.

    If Republicans don’t punish their own errant fools who are now propping up the “bounties” hoax and sponsoring idiotic bills to mess up qualified immunity, such as Mike Braun who is a total fake it seems, well, they are done. From 2020 forward they will be a permanent minority party. Looks like a very short window to get it together. If they bail out now, they will be punished. It is all the way to the mat in November and there is no tomorrow after that. Weasels will never be forgiven. Do you understand Mike braun and you other fakes?

    Right now the only ones I have respect for are Barr and maybe Pompeo, at least he’s not a backstabber. Maybe some obscure officials are doing ok. But far as I know the rest are incompetent or insignificant. The Secretary of Defense is a mutineer who should have been fired already. This is Trump’s fault. Gina Haspell the head of CIA is a torturer and an awful mischief maker and possible saboteur. FBI ‘s Wray is incompetent too as far as I can tell. a do nothing who watches and twiddles his thumbs as ANTIFA & BLM stage a violent revolution in our midst openly. What a mess.

    Just remember, pathetic Republican swamp creatures, if you keep on failing between now and November, then, after Trump, support for the Republican party is done, over. from me and a lot of others like me. You might as well go down in history like the Kerensky government. I know the stupid RINO suits probably never heard of Kerensky of course and this would fly over their heads but I’ll toss it out there just in case someone finds it useful.

  7. You think the stated excuses are the reason. I’m selling bridges.

    1. Absurd– I agree. No matter how carefully drafted the rule these robed saboteurs would have made up something to stop it. Look what Pretzel Roberts did on Obamacare and on the census question. Bizarre. I still wonder what the Obama people have on Roberts. They had the means and the will if there is something there.

      1. These are excuses too. Excuses for failure. Whose failures, why. Exonerate failures from leadership and you will get more failed leadership.

        You know probably one of the best moves Trump made when it came to lawyers was getting Turley up there for him at the impeachment. Because Turley is a technician and it was clear that he knew his subject material and knew it better than the other three he opposed. You need to get guys like Turley to do the work who can get it done well. I have no clue why Trump picked the people he did but when it comes to lawyers he has picked a lot of failures.

        Poor general Flynn did too. He had a failure in his big law firm that stabbed him in the back. And then Sidney Powell turned it all around. Because she is a technician and a good one and she also has the bllz of a real man even though she’s a lady. That’s the kind of lawyer Trump needs on his team., Not the kind of biglaw geeks who have been doing his real estate transactions and zoning variances the past 30 years and milking him for fees.

    2. To some degree they are excuses I agree. but the law is a technical matter and when it is poorly executed it is easier to dispense with by those who are so inclined.

      there is never any way of getting around having laws, and they are always technical in one way or another. so the effectiveness of compliance with existing statutory regimes like the APA, or the failure to do so, matters.

      the best legal minds in America may be Republicans, but there are not very many of them. Below the tier of the best minds, you have the best technicians. And those technicians are probably 80% Democrats. Rich ones too, working in big name law firms.

      Republican party has been not-serious about politics for a very long time. Lincoln was serious. Teddy Roosevelt was serious.

      I am not sure what others. Nixon, Reagan, maybe? You can tell me what Republicans were serious before Trump in our lifetime., I am not sure about that. Not the Bush family a bunch of country clubbers.

      Along came Trump. He breathed new life into an ossified party content with permanent minority status. He brought a lot of people back into action. He gave hope. The establishment Republicans were thin in the bench with serious people, thin in the bench with technicians, thin in the bench with a party structure that could leverage and connect with and support grass roots activists, thin in the bench with nearly everything that counts. but oh what a lot of naysayers and saboteurs and incompetents. This is what he meant when he said “lone warrior.” I get it. You should get it too.

      I dont know where you live but I live in the Rust belt. There are a lot of Republicans here and very little Republican leadership. A few elected officials who got in on the power of donations and advertising and darn sure not their merits as people or leaders. Zero charisma most of them. Just ticket punchers and empty suits. Then the local party people are a bunch of old ladies. Literally. The men who had exerted real leadership in better times all died out and were replaced by a bunch of women. And not strong ones either. It is a joke. There is nothing. The NRA probably delivers most of the Republican votes in the Rust belt and not a lot else. It’s really dismal and I am tired of pretending that it is not.

      A mentor of mine said “Republicans treat politics like a hobby and Democrats treat it like a job. Because for them it is. They work at it.” Words to that effect. He was a Democrat but he was a very conservative person, privately. He was a team player and a hard worker and a very cunning and successful lawyer. I wish to God there were men like him in the Republican party today but it’s run by a bunch of girls.

      When Trump is done, sooner or later, It looks to me like it’s going to be right back to that permanent minority status. If and when that happens, if they fail and lose like they are so obviously losing now, out of total weakness and lack of nerve, well, I will have nothing but contempt for Republican functionaries ever again.

      I guess I like Tucker and Bannon and they seem smart to me, but these are just two guys. They both lack the country club attitude that normally stinks up Republicans.

      1. Kurtz– Unfortunately that sounds right. The Republicans are a collection of spineless hacks and country clubbers. The Democrats seem like insane radicals or thieves or both, but they are motivated.

        I just saw that Antifa and BLM showed up in Long Beach and a notorious black gang, the Crips, ran them off. Never thought I would like the Crips but suddenly I do in this case. Where in hell is actual government?

        1. this is the insanity of a planned destabilization campaign. the government is failing and local power will show its face. make sure you “network” with your neigbhors this 4 of july because a local network of men with guns may be necessary if the anarchy accelerates.

          i was in panama once for an event and talking to a family of successful lawyers there (who had a beautiful fortresslike villa and guns) which remarkably was within walking distance from a big slum apartment structure. i asked my friend how they stayed safe when the noriega government collapsed and he said they set up sawhorses and sandbags at the access points to the neighborhood and had 24/7 armed guards who were very ready willing and able to kill looters. they faced down a mob who kept walking.

          the armed guards were partly volunteer but partly hired security. latin american elites have long experience at things like this and hire “pistoleros” like the famed Col Jeff cooper. look him up if you dont know who he was. but the point is you need a core group of men who can cooperate and a map of the access roads and paths that need guards– in advance of a conflagration.

          get it off google maps if you never done it before and this you can discuss over beers at the backyard fireworks saturday

          1. I think you are right; it is a planned destabilization that is directed by the DNC. Local Democrat governments have supported the mob and pulled back the police. It is deliberate and since it is happening in several places at once, likely coordinated.

            I noticed that in Boise ANTIFA was thwarted by armed locals who outnumbered them by about 5 to 1. In the video I saw a policeman holding them apart. Too bad. I would rather the locals dealt with them.

      2. We don’t need a bunch of FW De Klerks. who are just there to turn the lights off hand over the keys and sign the armistice. Who are where they are just because they are good at failing. That’s the Republicans before Trump and the way it’s going the way they’ll be after.

        We need men like Gonville Bromhead now. Look him up.

    3. I don’t know anything about Judge Kelly who overturned this law due to failure to comply with the Administrative Procedure Act, but Justice Brett Kavanaugh rejected DACA for the exact same reason earlier this week, and I don’t believe for a second that Kavanaugh was making up some phony excuse. The fact is, the law has to comply with the law. And it’s not that hard. DOJ has lawyers who specialize in administrative law, so why aren’t they doing their jobs? If anyone is intentionally undermining these laws, it is the DOJ lawyers and their supervisors, undoubtedly Obama holdovers. It’s hard to root out career civil service employees, but if they’re patently incompetent, whether intentionally so or not, and have been publicly called out twice by the courts for failure to comply with the basics of the APA, then they should be removed. And if Trump can’t trust the DOJ then he should out-source the work to a conservative law group like Judicial Watch or the Institute for Justice.

    1. Maybe or maybe that is colored and biased self promotion material from the renewable energy industry. which, seems to me, does not much discuss nor credit that it mostly uses physical components which were made possible by a massive fossil fuel infrastructure in the first place. ie, windmills made from steel refined with coal, parts made out of plastic made from oil, solar cells made with silver extracted byu fossil fuel powered mining machinery and chemical processes, etc. did they take all that into account in their fancy talk David? maybe it was just packed into some of their jargon I am too dense to translate. perhaps you can explain?

      and what’s the problem with nuclear? I read some of your links and its seems like it’s not been invited to the “renewable” or “clean energy” party?

      nuclear fusion is coming, not too far off, I know it’s been a long time coming but with increased computational power and artificial intelligence tools, it will see gains and perhaps sooner than expected. and it will make a lot of these “renewables” totally irrelevant. but for now I get it, they’re promoters.

  8. A political decision rather than one based on law or public benefit.

    I am nearly ready to see federal courts ignored. They are turning into unelected scoundrels.

    I am not alone. What is Sullivan doing? Where is the dismissal? He has no regard for federal decisions; why should I; why should the president?

    When those who respect the law begin to give up you have a problem.

    1. The federal courts can be shut down through the appropriations process. Fat chance McConnell will ever assent to that.

  9. Once again in the DOJ trying to delegate authority to life long bureaucrats and Obama hold overs is proving problematic

  10. I am sure it will be appealed. This having to jump through extra hoops is going to hamstring Biden if he becomes President.

    1. I think an appeal would waste more time. Just go back to the drawing board and do it right. Trump obviously did not write the law that was overturned. Some lawyer DOJ is either incompetent or intentionally screwed it up. And where was his supervisor who approved the shoddy work? This is the second time that a major law (this and DACA) was thrown out because DOJ lawyers did not follow the requirements of the Administrative Procedure Act. Find out who they are and transfer them to an outpost in Alaska. Make an example of them to other Deep State Obama holdovers in DOJ. Then have competent, trusted lawyers re-do the work and do it right this time.

      1. exactly TIN

        of course the clock is running out. right now the lesson to be learned is that you might win but can’t make things stick without sufficient organization and sufficient “lawyers guns and money”

  11. What a great CEO Trump is. His minions cannot get anything right. If Trump was governed by a board of trustees they would have long ago told him – “YOU”RE FIRED!”

  12. I thought that international law requiree asylm seekers to apply for asslym in the first country that they entered.

    1. We are not subject to international law. It has no effect in this nation and is as if it does not exist. If we paid any attention to international law we could not assasinate people with Hellfire missiles fired from drones.

    1. @issac, Somehow I’ve lost all confidence in a perverted judicial system which I hoped was designed for the benefit and protection of Americans. Oops.

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