A federal court judge ruled in early July that Trump’s ban on asylum at the southern border is unlawful. The court found the order violated the Immigration and Nationality Act, which guarantees asylum eligibility regardless of immigration status or entry method.
The President had closed the border to thousands of people who were fleeing persecution and torture and were waiting to cross into the US legally to seek protection.
His administration would have to resume processing asylum claims at the border if the federal appeals court affirms the district judge’s order.
Trump signed an executive order banning asylum seekers at the US-Mexico border
Trump’s goal for his second term as President is clear: make immigration and asylum more difficult, deport undocumented immigrants, close the borders.
He got straight to work on his first day in office by declaring that the situation at the southern border constituted an invasion of the United States and signed several executive orders to implement his plans. One of his orders is “Guaranteeing the States Against Invasion” that banned all individuals from seeking asylum along the US-Mexico border and empowered Customs and Border Protection (CBP) officials to “repel, repatriate, or remove” them from the U.S. By this, individuals could no longer claim fear of return.
The president justified his asylum ban to protect the public health and national security of the U.S. against an “invasion.”
Although Executive orders allow a US president to take action without the approval of Congress, they can be challenged in court if they are deemed to be unconstitutional or to interfere with the powers of the states. To this end, three non-profit organizations filed a lawsuit in a D.C. federal court challenging the ban as “unlawful as it is unprecedented.”
Judge ruled Trump exceeded his executive powers
The immigrant rights advocate groups, including the American Civil Liberties Union, Las Americas Immigrant Advocacy Center and Florence Immigrant & Refugee Rights Project, who sued the Trump administration over his presidential proclamation, argued that the executive order endangered thousands of lives by preventing people from seeking refuge in the US. They highlighted that a couple of their clients who were seeking asylum had already been deported under the policy.
Lawyers for the Trump administration counter-argued that the president has broad authority under federal law to suspend the entry of people deemed detrimental to US interest – especially in what it described as a national security and public health emergency at the border and that that the proclamation in question was unreviewable.
However, the presiding judge, Randolph D. Moss, found that Trump had exceeded his authority in suspending the right to apply for asylum.
“Nothing in the [Immigration and Nationality Act] or the Constitution grants the president or his delegates the sweeping authority asserted in the proclamation and implementing guidance,” Moss wrote in his ruling.
In his 128-page opinion, he added that the president was not granted “an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum” or other humanitarian protections.
He also asserted the constitution did not give the president the authority to “adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated.”
Moss, however, postponed enforcement of his ruling for 14 days and the Trump administration is expected to appeal during this timeframe.
What is Asylum?
Asylum has been part of U.S. law since 1980. It is a form of protection which allows an individual to remain in the United States instead of being removed (deported) to their home country or a country where he or she fears persecution or harm.
Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them protection and the right to stay in the United States. Those who are granted asylum are called asylees.
When is Asylum granted?
Asylum is granted to individuals who fear for their lives and can show a credible fear of persecution in their home country.
Persecution can be harm or threats of harm to one or one’s family or to people similar to one. A person can also obtain asylum if he or she has suffered persecution in his or her country in the past.
Individuals can only win asylum if at least one of the reasons someone harmed or may harm them is because of their race, religion, nationality, political opinion (or a political opinion someone thinks they have), or the fact that they are part of a “particular social group.”
How to apply for Asylum?
To apply for asylum in the United States, an individual must be physically present in the U.S. or along the border seeking entry into the U.S. at a port of entry. Generally, the application must be done within one year of their most recent arrival in the U.S.
A person may apply for asylum regardless of how they arrived in the United States or their current immigration status.
There are two primary ways a person may apply for asylum in the United States: affirmatively and defensively.
Affirmative asylum is applied for through the US Citizenship and Immigration Services (USCIS) by submitting Form I-589, Application for Asylum and for Withholding of Removal. A USCIS asylum officer then interviews the applicant, and if they find the applicant eligible for asylum, they may grant asylum as a matter of discretion.
If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, USCIS refers them to the immigration court for removal proceedings, where they may renew the request for asylum through the defensive process and appear before an immigration judge.
As of December 31, 2024, there were 1,446,908 affirmative asylum applications pending with USCIS.
Defensive asylum application occurs when a person requests asylum as a defense against removal from the United States. For asylum processing to be defensive, the applicant must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Immigration judges hear defensive asylum cases in courtroom-like proceedings, as necessary. The judge will hear arguments from both parties (the applicant and the U.S. government, represented by an attorney from ICE), then will decide whether the individual is eligible for asylum.
If the immigration judge finds the applicant eligible, they will grant asylum. But if not, they will determine whether such a person is eligible for any other forms of relief from removal. If the immigration judge finds him or her ineligible for other forms of relief, they will order the individual to be removed from the United States. Although either party can appeal the immigration judge’s decision.
Population and nationality of people at the U.S-Mexico border seeking asylum
According to the US Customs and Border Patrol (CBP), they recorded more than 200,000 immigration encounters monthly of migrants, refugees, and asylum seekers at the southern border seeking entry into the US.
A substantial number of asylum seekers are fleeing violence and persecution in the Americas, including Cuba, Haiti, Mexico, Nicaragua, El Salvador, Guatemala, Honduras and Venezuela. Asylum seekers who have sought protection at the border also include people from Cameroon, China, Ethiopia, Eritrea, Iran and Russia. Afghans and people displaced by the war in Ukraine have also arrived at the U.S. southern border to seek asylum.
What next for Trump?
Trump’s administration is expected to seek emergency relief from the federal appeals court. But if its appeal is unsuccessful, his administration will be barred from expelling asylum seekers already in the United States before their cases have been considered.
In addition, the ruling could reopen asylum processing on the southern border and enable migrants to cross into the United States in hopes of seeking refuge.
Meanwhile, White House spokeswoman, Jackson stated that “a local district court judge has no authority to stop President Trump and the United States from securing our border from the flood of aliens trying to enter illegally.”
“This is an attack on our Constitution, the laws Congress enacted, and our national sovereignty. We expect to be vindicated on appeal,” she added.
While Attorney General Pam Bondi said on X that, “The American people see right through this. Our attorneys @thejusticedept will fight this unconstitutional power grab as @POTUS continues to secure our border,” she wrote.
Stephen Miller, the White House deputy chief of staff, was also highly critical of Moss’s ruling, “A marxist judge has declared that all potential FUTURE illegal aliens on foreign soil (e.g. a large portion of planet earth) are part of a protected global ‘class’ entitled to admission into the United States,” he wrote.
The Law Offices of Anne Z. Sedki
We at The Law Offices of Anne Z. Sedki are following closely on this development, be sure to check back for updates.
However in the meantime, if you need more information or need to talk to an expert immigration attorney, please reach out. We have served immigrants and their loved ones for 20 years, obtaining success even in the most complex cases. Whether you are concerned about you and your family’s legal rights, or facing possible detainment or deportation, our team of immigration lawyers can provide expert advice on how to move forward.
Contact us today by calling 516-963-6672 or filling out this form to schedule a consultation with the best immigration lawyers. We promise to be by your side through it all because we believe in making a difference in the lives of others and our community.
