Constitution Daily

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Supreme Court drawn into asylum controversy

December 12, 2018 by Lyle Denniston


Claiming that the nation faces “an ongoing crisis” on its southern border because of a surge of illegal entry by foreign nationals, the Trump Administration rushed to the Supreme Court Tuesday, asking permission to put back into place its new restrictions on granting asylum to thousands of those who enter without permission.

This is the latest legal controversy to arise out of President Donald Trump’s fervent new efforts to control the nation’s border with Mexico, and the latest dispute testing presidential powers over immigration and foreign policy. At this point, the controversy focuses on the meaning of federal law governing asylum, but constitutional powers issues loom in the background.

A federal trial judge in California and a federal appeals court have temporarily blocked the new rules, finding that they may be clear violations of federal law governing eligibility for asylum by people fleeing from persecution and torture in their home nations.

At this point, the Trump Administration is only asking the Justices to let officials resume enforcing the restrictions, but it indicated that it would ask the Court to step in directly if the appeals court issues a more definite ruling against the rules. The restrictions put into place in early November were set to continue for 90 days, but now are on hold until the Justices act on the government’s new request.

The plea was filed with Justice Elena Kagan, who handles emergency legal matters that arise in the geographic area that is the federal courts’ Ninth Circuit. She can act on her own, or refer the issue to her eight colleagues. She told the organizations challenging the new asylum bar to file a response by noon Monday.

President Trump and two of his Cabinet officers joined in setting the new rules, which refuse to allow any foreign national to seek asylum if they entered the U.S. illegally and their entry came at points along the border other than official reception points – called “ports of entry.”

Both the trial judge and a majority of the three-judge appeals court panel found that the four organizations that protested the restrictions were likely to win their legal claim that a flat denial of asylum to anyone crossing illegally other than at a port of entry will be found to be a violation of federal law governing asylum.

Asylum is the process in which a foreign national, with a genuine fear of persecution or torture in that person’s home country, seeks to be declared a refugee and thus eligible to live in this country. President Trump, along with the Attorney General and the Secretary of Homeland Security, took steps to deny all eligibility for illegal border crossers, claiming that this was necessary to channel them to try to enter at ports of entry where their asylum claims could be handled more efficiently. The challengers contend that the restrictions were another way to deny foreigners entering the U.S. the rights they have under U.S. laws.

The lower court orders against enforcement of that denial said there is a likelihood that federal asylum law does not allow withholding of eligibility for asylum based solely on the way or the place the person entered the country without permission.

In proclaiming a temporary bar on entry by asylum seekers anywhere than at a port of entry, President Trump declared in a formal proclamation that he was acting to deal with the perceived crisis on the southern border.

Government lawyers told the Supreme Court Tuesday that the lower court orders against enforcing the bar “frustrate a coordinated effort by the President, the Attorney General, and the Secretary to re-establish sovereign control over the southern border, reduce illegal and dangerous border crossings, and conduct sensitive and ongoing negotiations” with Mexico and other countries about the surge of illegal entrants.

The Court was told that there has been a considerable increase in the backlog for processing asylum claims, and the entry of foreign nationals at places other than at ports of entry was adding to pressures on the asylum-review process.

No one, the new filing contended, has a right to asylum, and no one has a right to enter the country to seek asylum. It is clearly within the government’s powers, the document said, to impose even flat bars on who can be eligible even to claim asylum.

The new restrictions that filing said are not a flat bar on asylum-seekers who enter illegally, it is instead only a temporary restriction on where they may cross the border when they do come into the country.

One of the government’s main concerns, the new filing argued, is that foreign nationals will enter the country simply to make an asylum claim, whether sincere or not, in order to be allowed to remain while their case is analyzed for eligibility for refugee status, and perhaps get released into the U.S. and then never show up for the review process.

The restrictions, in effect for nearly a month, have resulted in the buildup of concentrations of foreign nationals on the Mexico side of the border, resulting in overcrowding and other living problems in those enclaves.

The lower court orders against the new asylum bar apply nationwide. The new Administration request argued that, if the Supreme Court is not willing to postpone those orders altogether, it should at least limit the enforcement ban to specific foreign individuals whom the challenging organizations can show are affected by the rules.

It also argued that the four challenging organizations, which are essentially legal advocacy groups working with asylum-seekers, cannot show that those organizations are even covered by the restrictions, so they had no legal right to file their lawsuit against the restrictions.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011. 


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