The U.S. Supreme Court late Wednesday gave the Trump administration permission to enforce its toughest restriction yet on asylum seekers at the southern border, even though a lawsuit to stop the new policy is still working its way through the lower courts.
As a result, the government can now refuse to consider a request for asylum from anyone who failed to apply for it in another country after leaving home but before coming here. The order means, for instance, that migrants from Honduras, Guatemala, and El Salvador cannot seek asylum in the U.S. if they didn’t first ask for it in Mexico.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, saying the court acted too quickly and should allow the case to work its way through the normal judicial process.
The administration said the new restriction is needed to respond to “an unprecedented surge” of people who enter the country illegally and seek asylum if they’re caught. But officials said only a small fraction of them are eventually found to be qualified. “The rule thus screens out asylum seekers who declined to request protection at their first opportunity,” said Solicitor General Noel Francisco. He said it allows immigration officials to concentrate on the asylum seekers who most need protection.
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Immigration courts now face a backlog of 436,000 asylum requests. But given how few are actually granted, it’s reasonable to ask whether those applicants “genuinely fear persecution or torture, or are simply economic migrants,” Francisco said.
After the new policy was announced in July, a federal judge in California blocked its enforcement, ruling that it would violate existing immigration law and was improperly rushed into effect. The Justice Department took the case to the Ninth Circuit Court of Appeals in San Francisco, but also asked the Supreme Court to let the government carry out the restrictions while the case is on appeal.
The ACLU, representing immigrant rights groups, said the new policy would violate a federal law in effect since 1980 that allows denying asylum claims only when applicants who have been “firmly resettled” in a third country or when the US has signed a safe-third-country agreement with another nation. No such agreement has been signed with Mexico.
The Trump administration’s restriction “bars virtually every non-Mexican asylum seeker who enters through the southern land border,” the ACLU told the Supreme Court, regardless of whether the applicant could have safely sought asylum in another country. The court should not permit “such a tectonic change to US asylum law,” especially at this early stage in the legal battle, the group said.
It’s the second recent immigration-related victory for the Trump administration before the Supreme Court. In July, the justices lifted a lower court order that had blocked the government from using Pentagon construction money to build part of the border wall on the Mexican border.
Asylum is a form of humanitarian relief recognized under international law. As a signatory to an international asylum treaty, the U.S. has a legal obligation to provide protection and certain rights to people who arrive at the border seeking asylum.
People may request it if they are unable or unwilling to return to their home countries because they have been persecuted there in the past or have a well-founded fear of persecution if they return, and the reason for the persecution is connected to race, religion, nationality, membership in a particular social group, or political opinion.
An earlier move by the Trump administration to restrict asylum remains blocked by the courts. It would have denied the protection to anyone who did not enter the US through a legal port of entry.
Dissenting from Wednesday’s order, Justices Sotomayor, joined by Justice Ginsburg, said the new asylum policy “seeks to upend longstanding practices regarding refugees who seek shelter from persecution. 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.”