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Appeals judges appear skeptical of rule limiting asylum seekers from Central America

Posted December 2, 2019 5:32 p.m. EST

— A federal appeals court on Monday questioned whether a new restrictive Trump administration asylum policy takes into account the dangers that migrants face in Mexico and Guatemala en route to the US.

The policy installed this summer bars most migrants traveling through countries such as Mexico from being able to claim asylum in the United States, which especially impacts migrants from Central America.

"They (migrants) have not applied, and I think for good reason, (for) asylum in Guatemala. They have not applied for asylum, I think for good reason, in Mexico. They are safe in neither place," said Judge William A. Fletcher.

A three-judge panel was hearing arguments stemming from a lawsuit aimed at blocking the administration's restrictive asylum rule. Fletcher, appointed by President Bill Clinton, and Judge Richard Clifton, appointed by President George W. Bush, appeared the most skeptical of the government's ability to address migrant safety. Judge Eric Miller, a Trump appointee, the third member of the panel, also asked the administration to address the concern that Mexico isn't a safe place for people to apply for asylum.

In July, the Trump administration moved to dramatically limit the ability of Central American migrants to claim asylum if they enter the US by land through Mexico. The rule prohibits migrants who have resided or transited through a third country from seeking asylum in the US, with limited exceptions, therefore barring many migrants traveling through Mexico from being able to claim asylum.

It is one of numerous administration moves aimed at restricting access to asylum in the US.

During oral arguments Monday, Clifton pointed out that the government didn't address safety in Mexico in its rule.

"But safety, your honor, that's not the primary point of the rule," said attorney Scott Stewart.

"That's the primary point of asylum," retorted Clifton.

Although a lower court initially blocked the restrictions, the Supreme Court cleared the way in September for the rule to go into effect nationwide while the appeals process plays out.

American Civil Liberties Union attorney Lee Gelernt, appearing on behalf of a group of immigrant rights and services organizations, argued Monday that the restrictions the government put in place "effectively limits asylum, except for wealthy people who have the ability to fly here."

He also argued that the government has not justified that "lack of notice or comment" on the rule, before it was put into effect.

The Justice Department argued that the "critical executive branch rule" was designed to prioritize urgent asylum claims, combat human smuggling, protect vulnerable migrants and find a lasting diplomatic solution to mass migration. Stewart, the attorney on behalf of the administration, said that the US attorney general and secretary of homeland security, who implemented the rule, "have square authority to issue additional conditions and limitations on the granting of asylum."

The federal lawsuit was brought in California by the ACLU, Southern Poverty Law Center, and the Center for Constitutional Rights in July. It has been making its way through the courts throughout the fall.

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