AG James and Coalition Continue Fight Against Unlawful Rule That Puts Asylum-Seekers at Greater Risk of Contracting COVID-19 at Southern Border

NEW YORK – New York Attorney General Letitia James, as part of a coalition of 22 attorneys general, today took legal action to stop the Trump Administration’s unlawful attempts to limit immigrants from accessing the nation’s asylum process. In an amicus brief — filed in support of the plaintiffs in O.A., et al. v. Trump — Attorney General James and the coalition ask the court to uphold a lower court decision that nullified a 2018 Trump Administration rule that blocked individuals who did not enter the United States through an official “port of entry” from seeking asylum. The district court previously voided the regulation, citing federal laws passed by Congress that allow all individuals who seek refuge in the United States to escape persecution in their countries of origin to apply for protection, regardless of how they enter the country.

“This nation has always welcomed in immigrants seeking asylum and despite the administration’s willingness to turn President Trump’s xenophobic rhetoric into policy, we will fight to ensure America remains a beacon of hope for those seeking refuge,” said Attorney General James. “Children and families fleeing war and other terrors at home do not deserve to be used as pawns in the president’s twisted game of political chess. This inhumane policy could literally mean the difference between life and death for so many, which is why we will fight to ensure the United States continues to offer the same welcoming arms that has served as solace for millions of refugees.” 

In 2018, the Trump Administration issued the rule in question in an effort to bar individuals and families from applying for asylum if they enter the country outside a legal port of entry. Border officials have allegedly taken part in a number of tactics aimed at unlawfully curbing asylum, including falsely informing individuals that the United States no longer provides asylum, as well as intimidating asylum-seekers by threatening to separate parents from their children if they do not renounce their claims for protection. The rule is just a part of the Trump Administration’s mosaic of restrictive and punitive policies aimed at dismantling the existing asylum system.

In the amicus brief — filed today in the U.S. Court of Appeals for the District of Columbia — Attorney General James and the coalition argue that this rule, in combination with existing policies that turn away refugees who present themselves at the border, makes it difficult or impossible for asylum-seekers to present their claims. The coalition continues that these tactics and other policies amount to a de facto denial of asylum. As a result, the rule violates the law and creates inhumane and unsanitary conditions at the southern border, forcing already vulnerable families to experience additional trauma; face further persecution; and be denied basic health services, education, and other life essentials — all the while putting them at greater risk for contracting the coronavirus disease 2019 (COVID-19). Despite these conditions, the Trump Administration has stopped processing asylum-seekers at ports of entry, leaving approximately 14,400 migrants stuck waiting for an opportunity to have their claims heard.

Specifically, the amicus brief asserts that the Trump Administration’s anti-asylum rule:

• Threatens to exacerbate inhumane border conditions and cause additional trauma to already vulnerable migrants and their families, including LGBTQ+ immigrants;
• Would harm coalition states — where the majority of asylum seekers resettle — by creating greater challenges to efforts to help asylum-seekers resettle and contribute to local communities; and
• Violates the Administrative Procedure Act by failing to provide any meaningful opportunity for states and communities to provide public comment.

Today’s amicus brief follows up on a comment letter Attorney General James and the coalition sent almost one year ago, in August 2019, to both the U.S. Department of Justice and U.S. Department of Homeland Security, urging the two agencies to rescind this policy.

The brief also builds on previously successful legal efforts by Attorney General James and the coalition in a separate lawsuit and a subsequent challenge to a preliminary injunction, opposing the same asylum rule in the U.S. Court of Appeals for the Ninth Circuit.

Joining Attorney General James in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.