Judge Randolph Moss, an Obama appointee on the U.S. District Court for the District of Columbia, questioned the need for another court to issue a temporary restraining order after Judge Jon Tigar’s ruling last month in California that said the administration’s policy should be put on hold.
Moss called it a little bit of head-scratcher as to how the plaintiffs in the cases before him will suffer irreparable injury if he doesn’t take action against a policy that is already on hold.
{mosads}Tigar’s order expires on Dec. 19, and the Obama appointee is expected to decide before then whether to issue a preliminary injunction that would keep the ban blocked nationwide. The government asked the Supreme Court last week to allow enforcement of the ban after the 9th Circuit Court of Appeals refused to stay Tigar’s ruling.
Moss said that if Tigar issues a preliminary injunction and the Supreme Court refuses to hear the appeal, none of the plaintiffs before him are likely to suffer any injury for quite awhile.
Human Rights First and the National Immigrant Justice Center brought one of the cases on behalf of six asylum seekers. The second challenge was brought by the Capital Area Immigrants’ Rights Coalition, the Refugee and Immigrant Center for Education and Legal Services Inc., and a young Honduran mother and her minor son on behalf of themselves and other asylum seekers.
Moss consolidated the cases during arguments on Monday.
The lawsuits challenge the interim final rule issued by acting Attorney General Matthew Whitaker and Homeland Security Secretary Kirstjen Nielsen that makes ineligible for asylum anyone who crosses the border illegally. A day after that rule was issued, President Trump suspended the entry of all persons entering the U.S. across the southern border if they are outside of a legal port of entry.
During the three-hour arguments, Moss said he was puzzled by the president’s proclamation given that it’s already illegal to cross the border outside of a legal point of entry. He questioned whether the attorney general can delegate asylum-limiting authority to the president.
{mossecondads}“All the president has really done here … is issue a proclamation for the purposes of implementing the regulation,” Moss said.
Monday’s hearing came just days after reports emerged that a 7-year-old girl died of dehydration and shock in Border Patrol custody shortly after crossing the border into New Mexico with her father.
The legal battle also comes as Trump is deadlocked with Democrats in a fight over funding for his proposed border wall.
The president is demanding $5 billion to build a wall along the U.S.-Mexico border and is threatening a partial government shutdown if Congress doesn’t provide the funding.
The plaintiffs in Monday’s cases claimed the asylum ban was invalid because it was issued by Whitaker, arguing that his appointment as acting attorney general was illegal. They also claimed the asylum ban violates federal law governing immigration and agency rulemaking.
Moss asked Deputy Assistant Attorney General Scott Stewart how soon after the public comment period closes on Jan. 8 Whitaker and Nielsen plan to issue a final rule.
Stewart said he didn’t know the timetable but said the cases are not a strong enough challenge to Whitaker’s appointment.
Moss said the parties should reconvene later this week to decide how to proceed once Tigar rules on whether to issue a preliminary injunction that further blocks the asylum ban.