Supreme Court says Trump administration can begin denying migrants’ asylum while legal fight continues

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September 11 at 7:06 PM

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 lifted a lower court’s block on the new restriction.

The justices put on hold a lower court’s ruling that the administration’s rule change could not be enforced pending additional legal action because it likely ran afoul of administrative law requirements.

Trump’s policy is a dramatic change in the way the U.S. treats those seeking asylum, and is one of the administration’s most significant efforts to deter migrants at the southern border. It is one of multiple tools federal immigration officials have deployed to prevent families and other asylum seekers from entering the United States.

Only Justices Sonia Sotomayor and Ruth Bader Ginsburg noted their disapproval of the court’s action, doing so 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,” wrote Sotomayor.

“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 will likely come back to the Supreme Court when the ongoing legal challenges have been completed in lower courts.

American Civil Liberties Union lawyer Lee Gelernt stressed that those cases 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 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 in July, and four immigrant-rights groups quickly challenged it. A federal district judge in California ruled that the law was likely invalid because it is inconsistent with federal law. He also said it violated the Administrative Procedures Act, and issued a nationwide injunction.

A panel of the 9th Circuit said the judge went too far. The policy likely violated the APA, it said, but the injunction should be limited to states within the 9th’s Circuit 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, speaking on the condition of anonymity to discuss a sensitive matter, said the new rule is being 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 asylum 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 American Civil Liberties Union. 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,” wrote Gelernt. The administration’s claim of a crisis at the border “cannot justify ignoring the laws Congress passed.”

Since 1980, the U.S. has said those who say they are fleeing persecution and violence in their home countries have the right to at least apply for asylum. The current case was the Trump administration’s second attempt to change that guarantee.

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.

Nick Miroff contributed to this report.