Order is one step closer to eviscerating our asylum system

Over the last two years, the Trump administration has sought to rewrite longstanding laws and close our doors to asylum seekers. The courts have by-in-large put a stop to these flagrantly unlawful policies the administration has hastily put in place without a required period for public comment. But as soon as one policy is struck down, another seems to take its place. Its latest attempt to thwart the will of Congress and do away with the U.S. asylum system by decree may be the most far reaching. And Wednesday evening, in a rare move, the U.S. Supreme Court allowed the policy to go into effect while the lower courts consider its legality. Barr v. East Bay Sanctuary Convenant, 190230 (Sept. 11, 2019).

Under the newest asylum ban, individuals entering at the U.S.-Mexico border who traveled through a third country will no longer be eligible for asylum with few exceptions. Applying to all non-Mexicans who necessarily transited a third country, the new rule thus effectively ends the U.S. asylum program put in place by Congress 40 years ago by denying protection for the largest proportion of applicants who enter at the southern border. The rule went into effect on July 16. Days later, on July 24, a federal district court in California preliminarily enjoined the rule, finding it likely unlawful in several respects including that it is inconsistent with longstanding statutes, was put into place without requisite advance notice, and the rationale for its existence -- to root out meritless claims -- was not supported by the evidence. The government appealed and also moved the court of appeals to stay the injunction pending resolution of the appeal on the merits.

On Aug. 16, an appellate panel granted the stay request in part, upholding the injunction only in the 9th Circuit. East Bay Sanctuary Covenant v. Barr, 2019 DJDAR 7840. Thus, as of that date, individuals who transited through a third country and entered in California or Arizona would be eligible for asylum but those entering through New Mexico or Texas would not. While the appeal on the merits moved forward, the court left open the possibility that the district court could consider additional evidence to support issuance of a nationwide injunction. Judge A. Wallace Tashima dissented from the partial stay, expressing concern that the majority's "split-the-baby" approach, undermined the recognized need for uniformity in the application of immigration policy. The government appealed the partial denial, asking the Supreme Court to stay the policy in the 9th Circuit as well.

The plaintiffs, represented by the ACLU, Center for Constitutional Rights, and Southern Poverty Law Center, introduced additional evidence before District Judge Jon S. Tigar who restored the nationwide scope of the injunction on Sept. 9. The next day, the Court of Appeals granted an "administrative stay," temporarily halting the nationwide injunction while the court considered a request to stay the injunction pending appeal, for which briefing is to be completed by next week. Then Wednesday, leapfrogging that process, the Supreme Court stayed both injunctions issued by Judge Tigar, allowing the rule to go back into effect across the country while the litigation remains ongoing. The majority offered no reasoning for its grant of the stay (a decision at odds with its refusal to stay an injunction of the administration's previous asylum ban that denied asylum to individuals who crossed the border outside a port of entry).

Justice Sonia Sotomayor joined by Justice Ruth Bader Ginsburg dissented, voicing special concern that the rule "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." The dissent also cautioned against the Supreme Court's intervention at this point in the process, which "risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency." The appeal on the merits of the injunction continues and the 9th Circuit will hear arguments in December.

Attorneys have described the last few weeks as whiplash -- in the morning their client may be eligible for critical-life saving protection, but in the afternoon, may be facing deportation to their fate. Individuals fleeing persecution and torture remain eligible for other forms of humanitarian protection. However, they offer no substitute for asylum and impose a higher evidentiary burden that proves insurmountable for many, particularly for the vast majority without legal representation. Practically the rule will send asylum seekers who have not sought protection in Mexico or Guatemala back to those countries, which will undoubtedly result in their return to dangerous conditions without a modicum of protection. Even if ultimately blocked, in the meantime, the rule will have severe consequences, eliminating life-or-death protection for people long recognized as meriting asylum under U.S. law. 

Ms. Bookey represented the Center for Gender & Refugee Studies and other nonprofit organizations and law school clinics as amici curiae before the district court as well as the U.S. Supreme Court in this case.