Timothy Kelly appearing for his U.S. District Court judgeship confirmation hearing in 2017. Credit: Senate Judiciary

A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.

U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit is set to rule on whether to uphold preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.

In Tuesday's ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law's "notice-and-comment" requirement before enacting the rule. He did not address other legal claims made against the policy.

Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA's "good cause" exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was "not sufficient evidence" to meet the exception.

Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.

"Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded," Kelly wrote. "In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them."

The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ's claims.

"At bottom, as plaintiffs point out, defendants—'despite studying migration patterns closely'—have 'failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.' That failure is striking," Kelly wrote.

Hogan Lovells attorney Mitchell Reich, who argued the case, in a statement called the ruling "a massive victory for asylum-seekers and the rule of law."

"Judge Kelly rightly concluded that the administration failed to do its homework in issuing this rule. It didn't hear from interested parties, and it didn't give any remotely satisfactory explanation for ignoring normal administrative procedures," he continued. "Hogan Lovells was honored to stand with our clients in challenging and defeating this unjustified and lawless policy."

The judge also shut down the Justice Department's argument that the rule could not be challenged under a "foreign affairs" exemption for the rulemaking procedures. Noting that there is little circuit precedent on that front, Kelly said "it presents a closer call" but the arguments still "come up short."

"The rule overhauls the procedure through which the United States decides whether aliens who arrive at our southern border are eligible for asylum here, no matter the country from which they originally fled," Kelly wrote. "These changes to our asylum criteria do not 'clearly and directly' involve activities or actions characteristic of the conduct of international relations."

The judge further denied DOJ lawyers' claims that immigration groups in the case lacked standing under existing immigration law, saying "the case law stands in stark contrast." He similarly panned another argument that immigration groups could not challenge the rule on behalf of asylum seekers, writing that the "organizations are not claiming standing on behalf of their clients, or any other individual asylum applicants."

"Rather, the organizational plaintiffs argue that the rule will directly injure them by making it harder for them to conduct their own basic activities. Indeed, defendants' position would seem to preclude an organization from bringing an APA challenge to any rule that even tangentially relates to immigration," Kelly wrote.

Correction: This post was updated to accurately reflect the status of a similar case at the U.S. Court of Appeals for the Ninth Circuit.