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Once Again, a Liberal Activist Judge Is Halting a Sensible Immigration Policy

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Unread 04.12.19, 09:37 PM
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Once Again, a Liberal Activist Judge Is Halting a Sensible Immigration Policy

On 04.12.19 02:58 PM posted by Hans von Spakovsky

If you look up the phrase “activist judge” in the liberal lexicon, one of the names that will no doubt appear at the top of the list is Richard Seeborg, a federal district court judge in San Francisco appointed by President Barack Obama.*

Earlier this month, Seeborg issued a nationwide preliminaryinjunction against the Trump administration’s sensible asylum policy. This isn’t Seeborg’s first act of judicialactivism: he is also the judge who issued a similar injunction againstreinstating a citizenship question on the U.S. Census based on the claim thatto do so would violate the Constitution. That case is now before the U.S.Supreme Court..

When it comes to judge shopping, it is no wonder liberaladvocacy groups keep going to his courtroom.

The Trump administration is now fighting Seeborg: A few daysafter the injunction, the Justice Department appealed to the Ninth CircuitCourt of Appeals and filed an emergency motion asking for a stay of JudgeSeeborg’s order pending the appeal.

Seeborg’s Argument

In Innovation Law Lab v. Nielsen, Seeborg held that theDepartment of Homeland Security (DHS) cannot enforce its “Migrant ProtectionProtocols” (MPP). The Protocols say thatnon-Mexican asylum seekers – with certain exceptions – arriving in the U.S.across our southern border will be returned to wait in Mexico until thevalidity of their asylum claim is determined.

Seeborg asserts that he is not making his decision based on whetherthe Migration Protection Protocols “is a wise, intelligent, or humane policy,or whether it is the best approach” because such policy decisions “remain forthe political branches” to make and implement. But then he proceeds to do exactly that, although he attempts todisguise his judicial policymaking by claiming the Protocols isn’t authorizedby federal law and violates the Administrative Procedures Act, which governsthe issuance of new regulations by government agencies.

In essence, Seeborg is refusing to allow the Department ofHomeland Security to exercise the clear and unambiguous statutory authority itis given by Congress under 8 U.S.C. §1225 (b)(2)(C). Former HomelandSecurity Secretary Kirstjen Nielsen announced in December 2018 that thedepartment was “invoking” its authority under this immigration provision.

Homeland Security’sArgument

As the emergency motion filed with the Ninth Circuit says:
The United States and Mexico face a humanitarian and security crisis on their shared border.* In recent months, hundreds of thousands of migrants have left their home countries in Central America to journey through Mexico and then across the southern border of the United States, where they often make meritless claims for asylum and yet – because of strains on our resources – frequently secure release into our country.

In just the month of March, Homeland Security apprehendedmore than 92,000 illegal border-crossers, “a pace of more than one million peryear and nearly double what it was just months ago.” Homeland Security also reported “encountering53,000 migrants as part of family units (many with children), a number neverbefore seen.” The “extraordinary volumeof crossings has severely burdened DHS’s ability to control the southernborder.”

According to the Justice Department’s brief in the districtcourt, the Department of Homeland Security invoked its authority under thisstatute, to “address the growing problems at the southern border resulting fromthe number of aliens apprehended along the southern border who claim a fear ofreturn to their home country far exceeding the Executive’s ability to processsuch aliens and capacity to detain them.” Many who would otherwise be detained are being “released into the UnitedStates – to reside for years without establishing an entitlement to relief oradmission, and many of whom never show up for their immigration proceedings andare ordered removed in absentia.”

The statute allows the secretary of Homeland Security to “return”any aliens “arriving on land (whether or not at a designated port of arrival) froma foreign territory contiguous to the United States…to that territory pending aproceeding.”

In other words, any aliens coming into the country across anyof our contiguous land borders who claim they have a legal right to be here,can be returned across the border back into Canada or Mexico and forced to waitthere while their immigration proceeding is pending.

There is an exception in the Department of Homeland Security guidance that provides that the alien will not be returned if there is a likelihood of harm in Mexico.* But the government says in its brief that the Mexican government has represented that aliens returned to Mexico under the Migration Protection Protocols would be afforded “‘all legal and procedural protection[s] provided for under applicable domestic and international law.’”*

Federal immigration law is often complex and hard tounderstand. But in essence, if thegovernment decides to use an expeditedremoval process, the return provision does not apply. However, if the government uses the full,regular removal process outlined in federal law, the return provision does apply. As part of the Protocols, Homeland Security isexercising its prosecutorial discretion to apply the regular (not theexpedited) full removal process to all non-Mexicans apprehended along thesouthern border who claim asylum.

What Seeborg GetsWrong

But Seeborg ignores this distinction and misreads the plaintext of the statute to conclude that the government cannot apply the returnprovision to any aliens claimingasylum. As the Justice Department tellsthe Ninth Circuit, Seeborg’s “interpretation is atextual and internally inconsistent.” Essentially, Seeborg reads the returnauthority of Homeland Security right out of the immigration statute.

By the way, Mexico has a very generous asylum law of itsown. No non-Mexican aliens arriving atour southern border who didn’t claim asylum under Mexican law the moment theyarrived in Mexico have a credible claim to asylum in the United States. Accordingto Homeland Security, four out of every five asylum claims made at the southernborder turn out not to be valid. Aliensare instead using fraudulent asylum claims as a passport into the U.S. and a get-out-of-detention-freecard to then disappear into the interior of the country.

Seeborg shouldn’t even be reviewing the Migration ProtectionProtocols in his courtroom since, as the Justice Department’s brief pointed out,another provision of federal immigration law, 8 U.S.C. §1252, bars judicial review ofdecisions made by the secretary that are given to his discretion, which isexactly what the alien return provision does. Yet Seeborg ignores this statutory limitation on his authority,too.

The government also argues that the AdministrativeProcedures Act, which Seeborg relies on to override the explicit language ofthe immigration provision on the return of aliens, can’t be used because the actby its own language does not apply to “general statements of policy.” Here, Homeland Security says it made ageneral policy announcement that it would be applying the statutory provisionsof 8 U.S.C. §1225(b)(2)(C).

Unfortunately, given the liberal make-up of the NinthCircuit, the Justice Department will likely have no success in its request fora stay. It will probably be up to theSupreme Court once again, just as in the travel ban case, to eventually rightthis miscarriage of justice. But thatneeds to happen quickly given the growing crisis at the border. As the government says in its emergency filing:

The district court’s injunctionwill impose immediate, substantial harm on the United States, including by diminishingthe Executive Branch’s ability to work effectively with Mexico to manage thecrisis on our shared border. That harmis exacerbated by the court’s decision to exceed limitations on its equitableauthority and issue a universal injunction.

Just another example of a single federal district courtjudge going far beyond the bounds of his authority and interfering with thepresident’s ability to deal with a national security and humanitarian crisis.

The post Once Again, a Liberal Activist Judge Is Halting a Sensible Immigration Policy appeared first on The Daily Signal.

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