Outside the Beltway

Supreme Court Upholds Injunction Against Trump’s Asylum Policy

The Supreme Court has rejected an attempt by the Trump Administration to have an injunction against its new asylum policy lifted.

Doug Mataconis · Wednesday, December 26, 2018 · 12 comments

Late last week, the Supreme Court declined a request from the Trump Administration to stay a lower court order that put the changes in the manner in which the government handles asylum claims:

WASHINGTON — The Supreme Court refused on Friday to allow the Trump administration to immediately enforce its new policy of denying asylum to migrants who illegally cross the Mexican border.

The Supreme Court’s two-sentence order revealed a new dynamic at the court, with Chief Justice John G. Roberts Jr. joining the four-member liberal wing in refusing to immediately reinstate the administration’s asylum policy.

The chief justice, appointed to the court by President George W. Bush in 2005, is now plainly at the court’s ideological center, a spot that had long belonged to Justice Anthony M. Kennedy, who retired in July and was replaced in October by Justice Brett M. Kavanaugh.

The court’s ruling thwarted, at least for now, President Trump’s proclamation last month that only migrants who arrived in the United States legally or applied at a port of entry would be eligible for asylum. And it is likely to only heighten tensions between Chief Justice Roberts and Mr. Trump, for whom limiting immigration is a central concern and who has been quick to criticize judges who rule against his immigration programs.

After a lower court blocked the new asylum rules last month, Mr. Trump dismissed the ruling as the work of an “Obama judge,” a reference to Judge Jon S. Tigar of the United States District Court in San Francisco, who issued the ruling blocking the program. Chief Justice Roberts issued a statement a few days later rebuking Mr. Trump.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said, adding that an “independent judiciary is something we should all be thankful for.”

After issuing a temporary restraining order blocking the initiative nationwide, Judge Tigar entered a preliminary injunction this week to the same effect.

“Whatever the scope of the president’s authority,” Judge Tigar wrote in the earlier ruling, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

Steven Stafford, a Justice Department spokesman, said the administration would continue to defend the policy.

“The court has not yet fully considered the merits of this case,” he said. “We will continue to defend the executive branch’s lawful authority over the discretionary benefit of asylum.”

The policy at issue in the case is one of a handful of efforts by the Trump administration to shrink the asylum system — by both discouraging people from applying, and by placing higher burdens on those who choose to proceed anyway.

Immigration officials have restricted the number of people who can apply for the status each day at ports of entry while also trying to rule out the possibility of requesting the status at any other location.

“If they can execute on both sides of that strategy, that means there are no asylum protections at all,” said Omar Jadwat, a lawyer with the American Civil Liberties Union.

Taken together, the result of the changes has been a buildup along the border of waiting migrants, whose chances of gaining refuge in the United States appear more slim with the introduction of each new policy.

On Thursday, the Department of Homeland Security announced another blow to the migrants — an initiative that would require them to wait in Mexico throughout the duration of asylum cases, which can take years to complete.

More from The Washington Post:

A divided Supreme Court on Friday refused to allow the Trump administration to immediately enforce a new policy of denying asylum to those who illegally cross the U.S.-Mexico border.

Chief Justice John G. Roberts Jr., a conservative nominated by President George W. Bush, sided with the court’s four liberals in denying the request, which lower courts had stopped after finding it a likely violation of federal law.

For the first time on a contested issue, Justice Brett M. Kavanaugh, nominated by President Trump and confirmed in October after a brutal partisan battle, noted his agreement with the court’s other conservatives.

He and Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — Trump’s other nominee to the court — would have granted the administration’s request to let the order go into effect.

The decision was about whether to lift a lower court’s stay of Trump’s new asylum regulation, not on the merits of his plan. The legal fight on that could return to the Supreme Court.

But the legal battle over the regulation had provoked a dispute between Roberts and Trump, after the president complained that an “Obama judge” had initially stopped the regulation. The chief justice issued a statement defending the judiciary’s independence.

As is often the case in such procedural matters, neither side in the 5-to-4 vote explained its reasoning.

A panel of the U.S. Court of Appeals for the 9th Circuit earlier this month kept in place a district judge’s decision that stopped the policy’s implementation, saying it was simply a way around specific language in federal law that allows all who enter the United States, regardless of where, to apply for asylum.

“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” wrote Appeals Court Judge Jay S. Bybee, a conservative nominated by Bush, in the 2-to-1 decision.

Trump’s Nov. 9 proclamation barred asylum for anyone who crosses the U.S.-Mexico border between official ports of entry, a reaction to recent caravans of migrants from Central America.

The ruling that was being appealed was issued back in November by Judge Jon S. Tigar, an Obama appointee who has been on the District Court in San Francisco since 2012. In essence, Judge Tigar ruled that the Trump Administration violated Federal law when it set a policy that only putative asylum seekers who had presented themselves at a designated port of entry would be considered eligible for asylum. All other purported asylum requests would be considered invalid and those persons would be processed for immediate deportation and return to their home countries. As Tigar notes, though, and as the law makes clear, a valid plea of asylum as a defense to deportation can be presented regardless of how the alien in question arrived in the country and regardless of their legal status at the time that the claim is made. While the law does give the Executive Branch some discretion regarding how asylum cases can be treated, Judge Tigar makes clear that this discretion does not extend as far as the Administration is trying to take it here. As a result, Judge Tigar ruled, the new policy is invalid and cannot be enforced pending future legal proceedings. Since that ruling, Judge Tigar has extended his temporary restraining order to a full preliminary injunction that will remain in place until there is a final ruling in the case. This injunction was upheld earlier this month by the Ninth Circuit Court of Appeals and it is the ruling that was essentially upheld by the Supreme Court last week.

Based on the applicable law, it’s clear that Judge Tigar, the Ninth Circuit, and the Supreme Court were correct in staying the effectiveness of the Trump Administration’s efforts to radically change asylum policy. The President’s proclamation, which he based on the alleged threat posed by a “caravan” consisting mostly poor women, children, and families seeking asylum from Central American nations on the verge of chaos thanks to government corruption and gang violence, also clearly violates applicable law. Specifically, I am referring to the relevant asylum laws in the United States Code, which can be found at 8 U.S.C. 1158 and the statutes that follow. For purposes of examining the President’s purported attempt to change the law, the relevant law can be found right at the beginning of the relevant statutes, at 8 U.S.C. 1158(a) which states:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters),irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title

The highlighted section makes clear that an alien making a claim of asylum need not appear only at a designated port of entry, and further provides that the right to claim asylum, which exists pursuant to both this statute and international treaties to which the United States is a signatory, applies regardless of the alien’s status. This means that an alien who has crossed into the United States illegally, or who is in the country illegally due to the fact that they overstayed or violated the terms of their visa, is still entitled to make an asylum claim and that they must be given a hearing on that claim. There are exceptions to this provision of course, but they apply in only a limited number of cases that would not be relevant to the vast majority of the asylum seekers making their way from Central America or those who are already in the country and either being detained pending a hearing or allowed to be released on their own recognizance pending a hearing at a future date.

As a matter of law, there seems to be very little question that Judge Tigar, the Ninth Circuit, and the Supreme Court are on the right of this question and that any appeal would likely be unsuccessful. The statute makes clear that the right to seek asylum is not dependent on having arrived at a designated port of entry, nor is it dependent upon the question of whether or not the asylum seeker is in the country legally. Given this, it seems clear that the Trump Administration went too far in attempting to rewrite immigration law via Executive Branch decree, something that, ironically enough, Republicans frequently accused the Obama Administration of having done with regard to programs such as Deferred Action for Childhood Arrivals. If the Administration were smart, it would withdraw this proclamation and start over again because it’s hard to see how this will survive legally if they continue to fight.