Court al­lows de­nial of asy­lum at south­ern bor­der

Jus­tices de­lay in­junc­tion; mi­grants first must seek haven in other nations

The Washington Post - - FRONT PAGE - BY ROBERT BARNES

The Trump ad­min­is­tra­tion can be­gin denying asy­lum re­quests from mi­grants at the south­ern bor­der who have trav­eled through Mex­ico or an­other coun­try with­out seeking pro­tec­tion there, af­ter the Supreme Court on Wed­nes­day lifted a lower court’s block on the new re­stric­tion.

The jus­tices put on hold an in­junc­tion from lower courts in Cal­i­for­nia that halted the new rule pend­ing ad­di­tional le­gal ac­tion; there, a district judge had said it prob­a­bly ran afoul of a fed­eral statute and ad­min­is­tra­tive law re­quire­ments.

Pres­i­dent Trump’s pol­icy is a dra­matic change in the way the fed­eral govern­ment treats those seeking safe haven in the United States, and is one of the ad­min­is­tra­tion’s most sig­nif­i­cant efforts to de­ter mi­grants at the south­ern bor­der. It is one of mul­ti­ple tools im­mi­gra­tion of­fi­cials have de­ployed to pre­vent en­try by fam­i­lies and oth­ers flee­ing vi­o­lence and poverty in Cen­tral Amer­ica.

Trump re­acted on Twit­ter: “BIG United States Supreme Court WIN for the Bor­der on Asy­lum!”

Trump later tweeted Wed­nes­day night that he had “an ex­cel­lent tele­phone con­ver­sa­tion” with Mex­i­can Pres­i­dent An­drés Manuel López Obrador about bor­der se­cu­rity and other is­sues.

Ear­lier this sum­mer, the court on a 5-to-4 vote agreed to an­other emer­gency re­quest from the ad­min­is­tra­tion, al­low­ing it to pro­ceed with plans to use $2.5 bil­lion in Pen­tagon funds to build part of the pres­i­dent’s wall project along the south­ern bor­der.

No vote was recorded in the asy­lum case or­der, but Jus­tices

So­nia So­tomayor and Ruth Bader Ginsburg noted their dis­ap­proval of the court’s ac­tion in a strongly worded dis­sent.

“Once again the Ex­ec­u­tive Branch has is­sued a rule that seeks to up­end long­stand­ing prac­tices re­gard­ing refugees who seek shel­ter from per­se­cu­tion,” So­tomayor wrote.

“Although this Na­tion has long kept its doors open to refugees — and although the stakes for asy­lum seek­ers could not be higher — the Govern­ment im­ple­mented its rule with­out first pro­vid­ing the pub­lic no­tice and invit­ing the pub­lic in­put gen­er­ally re­quired by law.”

As is com­mon, the court’s ma­jor­ity did not pro­vide a rea­son for lift­ing the in­junc­tion is­sued by a lower court. The is­sue is likely to come back to the Supreme Court when the on­go­ing le­gal chal­lenges have been com­pleted in lower courts.

But that could take months, and So­tomayor said the status quo should re­main in place un­til then. The change most af­fects Hon­durans, Sal­vado­rans and Gu­atemalans leav­ing be­hind gang vi­o­lence and high lev­els of crime in their coun­tries. It could also turn away mi­grants flee­ing op­pres­sive regimes in Nicaragua, Venezuela and else­where.

U.S. Citizenshi­p and Im­mi­graSer­vices acting di­rec­tor Ken Cuc­cinelli tweeted that the Trump ad­min­is­tra­tion “uses ev­ery tool in the tool­box to try and solve the crisis at our south­ern bor­der. @USCIS will com­mence im­ple­ment­ing the asy­lum rule ASAP.”

Amer­i­can Civil Lib­er­ties Union lawyer Lee Gel­ernt stressed that the chal­lenges con­tinue. “This is just a tem­po­rary step, and we’re hope­ful we’ll pre­vail at the end of the day,” he said in a state­ment. “The lives of thou­sands of fam­i­lies are at stake.”

A record num­ber of Cen­tral Amer­i­can fam­i­lies have sought asy­lum in the United States dur­ing the past year, and most have been re­leased to await court hear­ings, thwart­ing Trump’s efforts to curb a new wave of mi­grants. The Jus­tice De­part­ment says more than 436,000 pend­ing cases in­clude an asy­lum ap­pli­ca­tion.

The Trump ad­min­is­tra­tion an­nounced the change — re­quir­ing mi­grants to seek pro­tec­tion in the first coun­try they travel through — in July.

Four im­mi­grant-rights groups quickly chal­lenged it. A fed­eral district judge in Cal­i­for­nia ruled that the law was prob­a­bly in­valid be­cause it is in­con­sis­tent with fed­eral law. He also said it vi­o­lated the Ad­min­is­tra­tive Pro­ce­dure Act, and is­sued a na­tion­wide in­junc­tion.

A panel of the U.S. Court of Appeals for the 9th Circuit said the judge went too far. The pol­icy prob­a­bly vi­o­lated the APA, it said, but the in­junc­tion should be lim­ited to states within the 9th Circuit’s ju­ris­dic­tion. That meant the rule change could not be im­ple­mented along the Cal­i­for­nia and Ari­zona borders. The other south­ern bor­der states, New Mex­ico and Texas, are in dif­fer­ent cir­cuits. A U.S. Citizenshi­p and Im­mi­gra­tion Ser­vices of­fi­cial, who spoke on the con­di­tion of anonymity to discuss a sen­si­tive matter, said the new rule has been applied in those bor­der ar­eas.

But U.S. District Judge Jon Ti­gar on Mon­day re­in­stated the na­tion­wide in­junc­tion, say­ing it was the only way to pro­vide the or­ga­ni­za­tions the relief he said they de­served, and to keep the na­tion’s asy­lum law uni­form.

Even be­fore Ti­gar’s lat­est rul­ing, So­lic­i­tor Gen­eral Noel J. Fran­cisco had asked the Supreme Court to al­low the new rules to be im­ple­mented ev­ery­where while the le­gal bat­tle con­tin­ued.

Congress gives the de­part­ments of Jus­tice and Home­land Se­cu­rity au­thor­ity to im­pose ad­di­tional re­stric­tions on asy­lum seek­ers be­yond those in fed­eral law, Fran­cisco ar­gued. He said the new re­quire­ment “al­le­vi­ates a crush­ing burden on the U.S. asy­lum sys­tem by pri­or­i­tiz­ing asy­lum seek­ers who most need asy­tion lum in the United States.”

“In turn, the rule de­ters aliens with­out a gen­uine need for asy­lum from mak­ing the ar­du­ous and po­ten­tially danger­ous jour­ney from Cen­tral Amer­ica to the United States,” he added.

The im­mi­grant-rights groups were rep­re­sented by the ACLU. They called the changes a “bla­tant end-run around Congress” and a “tec­tonic change to U.S. asy­lum law” that should not be al­lowed with­out a full brief­ing on its mer­its.

“Al­low­ing the ban to go into ef­fect would not only up­end four decades of un­bro­ken practice, it would place count­less peo­ple, in­clud­ing fam­i­lies and un­ac­com­pa­nied chil­dren, at grave risk,” Gel­ernt wrote. The ad­min­is­tra­tion’s claim of a crisis at the bor­der “can­not jus­tify ig­nor­ing the laws Congress passed.”

So­tomayor seemed to agree. She wrote that “the rule the Govern­ment pro­mul­gated top­ples decades of set­tled asy­lum prac­tices and af­fects some of the most vul­ner­a­ble peo­ple in the West­ern Hemi­sphere — with­out af­ford­ing the pub­lic a chance to weigh in.”

She also wrote that she was dis­turbed that the ad­min­is­tra­tion con­tin­ues to ask the Supreme Court to step in im­me­di­ately af­ter it re­ceives an ad­verse rul­ing in lower courts, rather than al­low­ing the nor­mal le­gal process to run its course.

She noted a study by Univer­sity of Texas law pro­fes­sor Stephen Vladeck, which said Fran­cisco’s of­fice “has sought emer­gency or ex­traor­di­nary relief from the Supreme Court with un­prece­dented fre­quency.”

So­tomayor wrote: “Historical­ly, the Govern­ment has made this kind of re­quest rarely; now it does so re­flex­ively.”

The ad­min­is­tra­tion coun­ters that no other has had its ini­tia­tives thwarted so of­ten by lower courts that en­ter na­tion­wide in­junc­tions against its pol­icy de­ci­sions.

Since 1980, the United States has said that those who say they are flee­ing per­se­cu­tion and vi­o­lence in their home coun­tries have the right to at least ap­ply for asy­lum.

Michael Knowles, a spokesman for the union that rep­re­sents asy­lum of­fi­cers and other Citizenshi­p and Im­mi­gra­tion Ser­vices work­ers, called the new pol­icy “clearly in­com­pat­i­ble with the law that says asy­lum seek­ers must have their cases heard, ir­re­spec­tive of their method or route of tran­sit.”

Knowles said the rul­ing will present the asy­lum of­fi­cers who in­ter­view those seeking pro­tec­tion in a bind. “It’s an eth­i­cal and moral dilemma for of­fi­cers who are tasked with up­hold­ing our coun­try’s obli­ga­tions and laws,” he said. “We be­lieve asy­lum seek­ers de­serve due process.”

Of­fi­cers who be­lieve that an asy­lum seeker would face grave dan­ger if de­ported to their home coun­try could still po­ten­tially re­fer that per­son to the im­mi­gra­tion court sys­tem un­der the Con­ven­tion Against Tor­ture, Knowles said. But that per­son would only be eligible for what is known as “with­hold­ing of re­moval,” a lesser status that blocks their de­por­ta­tion but does not put them on a path to le­gal U.S. res­i­dency.

The current case was the Trump ad­min­is­tra­tion’s sec­ond at­tempt to change asy­lum rules.

In De­cem­ber, the court on a 5-to-4 vote refused to lift a stay on Trump’s first at­tempt. It would have de­nied asy­lum re­quests from any­one who en­tered the coun­try at any place other than an authorized “port of en­try.”

A dif­fer­ent panel of the 9th Circuit said that change was clearly at odds with fed­eral law. Chief Jus­tice John G. Roberts Jr. joined the court’s four lib­er­als in keep­ing the stay in place while the le­gal bat­tle con­tin­ued.

The ad­min­is­tra­tion has not yet filed a pe­ti­tion with the Supreme Court to ask it to re­view the mer­its of that case.

The new case is Barr v. East Bay Sanc­tu­ary Covenant.

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