East Bay Sanctuary Covenant's Fine Brief, On Asylum, Is Available Now.

It makes a very solid, muscular argument that (once again!) 45's team is unable, as a matter of law, to attempt to ban asylum seekers, or demand that they present only at designated ports of entry. [Just one of my prior notes on this issue, here.]

Only an Act of the full Congress (including the now-Democrat controlled House!) may make such a change (i.e., not happening). And so, this is all so much. . . impotent kabuki theatre, by the Tangerine Mussolini. Condor predicts it will -- as soon as Monday night -- be enjoined. From the fine 22 page PDF file brief then:

. . . .[Team Trump] concede[s]. . . that it is only the regulation, and not the Proclamation, that bars asylum. But the Attorney General has no authority to ignore Congress’s clear statutory language permitting asylum “whether or not” one enters at a port. 8 U.S.C. § 1158(a)(1). . . .

[The Immigration and Nationality Act, as amended] specifically forbids the government from imposing the rule at issue in this case. As the Ninth Circuit has repeatedly explained, an agency’s authority to make categorical discretionary decisions cannot justify violating the terms set by Congress in the statute. Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015) (“Lopez applies only when Congress has not spoken to the precise issue . . . .”) (quoting Rodriguez v. Smith, 541 F.3d 1180, 1188 (9th Cir.2008)). Thus, “[t]he agency cannot get in through the back door of the relief stage what it cannot do at the eligibility stage.” Succar v. Ashcroft, 394 F.3d 8, 29 n.28 (1st Cir. 2005) (“because eligibility is explicit in this statute, the Attorney General cannot categorically refuse to exercise discretion favorably for classes deemed eligible by the statute”).

The government further contends that the Attorney General has broad authority to establish new bars to asylum, brushing aside that Congress authorized the Attorney General to adopt only limitations “consistent with this section.” 8 U.S.C. § 1158(b)(2)(C). The Attorney General cannot establish a rule inconsistent with the clear command of § 1158(a)(1). Indeed, the Ninth Circuit previously rejected a similar attempt to eliminate an immigration provision by regulation. See Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005) (“because the ‘regulation redefines certain aliens as ineligible to apply for adjustment of status. . . whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply[,]’ the regulation is invalid”) (quoting Succar, 394 F.3d at 9). . . .

For a complete record only -- but not as any example of what the law in this area really is -- here is the Trump brief.

Onward, to a videoed argument on Monday. Smile -- that ought to be very. . . droll. . . .

नमस्ते