High court action sought on asylum ban

The Trump administration asked the Supreme Court on Tuesday to reinstate the president’s ban on political asylum for thousands of undocumented immigrants, a ban that lower courts have deemed to be in direct contradiction of U.S. immigration law.

The restrictions, announced by President Trump on Nov. 9 but blocked 10 days later by U.S. District Judge Jon Tigar of San Francisco, are needed to “re-establish sovereign control over the southern border” and “reduce illegal and dangerous border crossings,” Justice Department lawyers said in asking the high court for a stay of Tigar’s ruling.

They also said the plaintiffs, organizations that provide legal support to asylum-seekers, were mere “bystanders” who had nothing tangible at stake and lacked legal standing to sue. And they criticized Tigar for issuing a nationwide restraining order against the asylum ban, “part of a troubling pattern of single judges dictating national policy.”

In response, attorney Lee Gelernt of the American Civil Liberties Union, which sued on behalf of the asylum support groups, said, “The Trump administration is asking the Supreme Court to short-circuit the normal judicial process and reinstate a blatantly unlawful policy.”

Asylum is granted to noncitizens who can show a “well-founded fear of persecution” in their homeland for reasons such as race, religion, political views, or, under recent rulings, sexual orientation. Trump, whose administration has also sought to limit the grounds for asylum, issued orders Nov. 9 to bar asylum for anyone crossing the Mexican border illegally in any place other than a port of entry.

The ports are a limited number of designated areas where migrants can seek legal entry, but currently face waits of several months, in often hazardous conditions, to apply for asylum. Trump said the change was needed to discourage unlawful crossings by large numbers of migrants from Central America.

But Tigar said the edict conflicted with a federal law, passed in its current form in 1996, that said foreigners who have entered the United States can apply for asylum no matter where they entered. Finding that the administration had also disregarded a requirement to seek public notice and comment before imposing such a rule, he issued a 30-day restraining order against the ban and has scheduled a hearing for Tuesday on whether to convert the order to a longer-lasting preliminary injunction.

While Trump derided the ruling from an “Obama judge,” his administration has sought to sidestep Tigar by seeking stays from higher courts. On Friday, the Ninth U.S. Circuit Court of Appeals in San Francisco voted 2-1 to deny a stay, with a stern reminder by Judge Jay Bybee — one of the court’s most conservative members — that “revision of the laws is left with the branch that enacted the laws in the first place — Congress.”

In Tuesday’s Supreme Court filing, the Justice Department made the same argument that the lower courts rejected — that Congress only authorized immigrants to apply for asylum after entering the U.S. illegally, and left the government free to deny all such applications.

“No alien ever has a right to be granted asylum,” a decision that is left to the government’s discretion, Justice Department lawyers said. They said the asylum restriction would help restore order at the border and give Trump time to negotiate agreements with Mexico and the Central American nations of Honduras, El Salvador and Nicaragua on treatment of the migrants.