Judge Jon Tigar, U.S. District Court for the Northern District of California. Photo: Jason Doiy/ALM

SAN FRANCISCO—DOJ lawyer Scott Stewart found himself in a familiar, uncomfortable position Wednesday—fielding skeptical questions on Trump administration changes to asylum rules from U.S. District Judge Jon Tigar of the Northern District of California.

Tigar last year blocked the administration's move to limit asylum to only those entering the country through an official port of entry despite Stewart's arguments that the policy was necessary to stem a crisis at the nation's southern border with Mexico. 

On Wednesday, Stewart was defending the new rules barring asylum for anyone who hasn't applied for and been denied similar protection in a country they traveled through before arriving in the U.S.—a policy directed toward Central American migrants coming to the country through Mexico. 

Tigar, early in the hearing, said the evidence of the inadequacy of Mexico's own system for dealing with asylum seekers was “stunning.” 

“There's some pretty tough stuff in there,” said Tigar later of the government's own evidence. “Applications are up dramatically but there's no indication that the Mexican asylum process has grown.” 

A group of nonprofit immigrant advocacy groups were in court Wednesday seeking an injunction blocking the changes. The organizations contend the rule effectively closed the door on asylum seekers, including unaccompanied minors, arriving from Central America via the country's southern border with Mexico. The organizations claim that the changes, made via a July 16 interim final rule from the attorney general and acting secretary of homeland security, violate the Immigration and Nationality Act, which says asylum seekers cannot categorically be denied based on their particular route to the United States.

Stewart noted in his opening remarks that a federal judge in Washington, D.C., earlier in the day allowed the asylum policy to move forward in the face of a separate legal challenge from other nonprofit groups, for now at least. U.S. District Judge Timothy Kelly o the District of Columbia, appointed by President Donald Trump in 2017, turned down a request for a temporary restraining order after finding there was not enough evidence to support claims of imminent harm.

In Tigar's packed-to-capacity courtroom, one member of the audience hissed during discussion of Kelly's order. Tigar momentarily stopped the proceedings to urge the audience member to “respect the dignity of the proceedings” and defended Kelly.

“I'm sure he's given this matter as much thought as I have,” Tigar said. The judge later added: “My point is that these are two district courts both trying to do their best work on an issue of national importance.” 

Tigar last year blocked the administration's move to limit asylum to only those entering the country through an official port of entry. 

Tigar's earlier ruling prompted a public complaint from the president, who railed about his administration's record in the “Ninth Circuit” before calling Tigar, in particular, an “Obama judge.” The president's remarks prompted a rare response from Chief Justice John Roberts who issued a statement just before Thanksgiving saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” 

The Ninth Circuit upheld Tigar's ruling shortly thereafter in an opinion written by Judge Jay Bybee, a George W. Bush appointee, and Roberts joined with the liberal wing of the U.S. Supreme Court in December again upholding the ruling.

The challengers in the Washington case, the Capital Area Immigrants' Rights Coalition and Refugee and Immigrant Center for Education and Legal Services, are represented by a team from Hogan Lovells. They argued the new rules violate the Immigration and Nationality Act, and the Administrative Procedures Act since there was no notice and comment period.

Tigar indicated at the end of Wednesday's hearing that he intends to issue a written order by the end of the day.