Originally published by The New Yorker
Earlier this month, the U.S. Supreme Court ruled to allow a new executive-branch regulation, which effectively ends asylum at the southern border, to remain in place for the next several months, while its legality is challenged in the federal courts. The ruling will now make it impossible for tens of thousands of migrants to apply for asylum when they reach the U.S.; it will also block thousands of other asylum seekers currently in Mexico, who have already begun the application process during the past two months under a different Administration policy, called the Migrant Protection Protocols, or the “Remain in Mexico” program. It was a puzzling outcome. The Court not only broke with nearly four decades of legal precedent but also seemed to contradict its own position from less than a year ago. In December, 2018, the Supreme Court faced a nearly identical question, following an earlier order by President Trump to ban asylum at the border. On that occasion, the Supreme Court ruled that the ban could not remain in effect as it moved through the lower courts.
This weekend, I spoke with Lee Gelernt, a lawyer with the A.C.L.U., who is leading the litigation against both of Trump’s asylum bans. The Trump Administration has insisted that there is a right and a wrong way for immigrants to come to the U.S; the converse of that argument is that there is also a right and a wrong way for the U.S. government to make immigration policy. According to Gelernt, the recent asylum bans have failed to meet the most basic standards laid out by Congress in the Refugee Act of 1980 and the Administrative Procedure Act, which invalidates policies that are “arbitrary and capricious.” Now, Gelernt said, “there are so many different policies in place, at so many different stages of litigation,” that the over-all effect is approaching a kind of chaos. “It’s becoming difficult to figure out which policies are in place, which are enjoined, which are partially enjoined, and what it all means,” he said. Our conversation has been edited and condensed.
Trump has tried to ban asylum at the southern border before, and the Supreme Court got in his way. How does that previous episode relate to what the Supreme Court is doing now?
There have been two direct asylum bans by the Trump Administration. The first one was last year, and that ban would have barred asylum for anybody who crossed [the border] between ports of entry. We challenged it within a few hours of the President issuing the ban, and got a nationwide injunction to block the ban from a judge in San Francisco, saying the ban could not go into effect. The government appealed that ruling but at the same time asked the Ninth Circuit Court of Appeals to issue what’s called a stay of the injunction, to allow the ban to go into effect immediately while the case worked its way through the appellate courts. The Ninth Circuit refused. And so the government went to the Supreme Court to ask it for an emergency stay of the injunction to allow the ban to go into effect while the case went through appeals. The Supreme Court, in a 5–4 decision, said that it would not allow the ban to go into effect immediately and refused the Administration’s request for an emergency stay.
What about the asylum ban announced this summer?
Next we have asylum ban 2.0, which is called the transit ban, and was issued this past July. This asylum ban says that you must apply for asylum in a country you transited through: if you’ve travelled through a third country on your way to the United States, you must apply for asylum in that country. (If you don’t, the government would consider you ineligible to apply for asylum in the United States.) That would effectively end asylum at the southern border—for everyone but Mexicans, who obviously don’t need to transit through a third country to reach the U.S.
And the A.C.L.U. challenged this ban just as it did the first one.
We again went in, within thirty-six hours, to the same district court in San Francisco, because the case was related to the first asylum ban. Again, the judge blocked it nationwide and said that the second asylum ban could not go into effect nationwide. Once again, the government sought an emergency stay from the Ninth Circuit Court of Appeals, asking the court to let the ban go into effect immediately while the government appealed the case on the merits. This time, the Ninth Circuit did something different. It narrowed the injunction from a nationwide injunction to a Ninth-Circuit-specific injunction, meaning it would be blocked from going into effect in California and Arizona, the states that fall under the jurisdiction of the court. At the same time, the Solicitor General went to the Supreme Court and said that the government should be allowed to put the second asylum ban into effect around the country nationwide, and that the Ninth Circuit should not have blocked the ban anywhere in the country.
What happened last week?
On September 11th, this year, the Supreme Court ruled—and issued a stay, in contrast to what it had done with the first asylum ban. This time the Court said that the second asylum ban could go into effect immediately nationwide. We don’t know which five Justices ruled in favor of the stay or how many Justices dissented. The opinion was unsigned. We know that Justice Sotomayor and Justice Ginsburg would not have issued the stay. They signed a dissent.
Is there any way in which the legal problems associated with the second asylum ban were not as clear-cut as those associated with the first? Anything that could explain why the Supreme Court would behave differently from one case to the next?
The first asylum ban said that you may not get asylum if you apply between points of entry. We pointed out that the federal statute says very precisely that you may apply for asylum whether or not you enter between a point of entry or at a port of entry. With the first asylum ban, there was a direct conflict with the statute Congress had passed, a literal contradiction. What the government said in the second asylum ban was that even if there was a direct conflict between the first asylum ban and what Congress had explicitly written in the statute, there’s not the same specific conflict in the second asylum ban. Congress never said in so many words that the executive branch could not have a transit bar.
But Congress had specifically thought about, and addressed, the question of the availability of asylum for those who have transitted through a third country. And Congress decided that merely transitting through a third country was not a basis for automatically denying asylum, except in two very narrow circumstances, both of which took into account whether you would be safe in the third country, and whether the third country was willing and able to provide you with a full and fair asylum process. Whether that’s what the majority of the Justices thought was the difference (between the first and second asylum bans), we don’t know, because there’s no opinion.
How should people understand the premise and stakes of the second asylum ban?
The premise of the transit bar, according to the Administration, was that an asylum seeker must not really be in danger if he or she doesn’t apply for asylum in the first country that she enters. But that assumes that when you’re fleeing, for example, from El Salvador, and you get to Guatemala, you believe you’ve reached a safe haven, and that Guatemala has a fully functioning asylum system. The facts do not bear this out. The reality, as all experts understand, is that the reason people don’t sit in Guatemala or Mexico and seek asylum there is that they know they’ll continue to be in danger, that the gangs who have been attacking them—or the perpetrator of the domestic violence they’re fleeing, or other types of danger—can easily locate them in Guatemala or Mexico; they will not be safe. And they also know that those countries do not provide a full, fair asylum process.
How has the idea that there’s an emergency at the border played into the arguments made by the government in court?
The government’s briefs to the Supreme Court have emphasized that extensively, both for the first asylum ban and the second ban. What we said for the first asylum ban and the second was that if Congress thinks there’s a crisis, then it’s for Congress to fix the asylum laws. The second thing we pointed out was that the numbers of those crossing are not historically high. And the third thing we pointed out is that you cannot react to the numbers, which ebb and flow, by eliminating a fair process for asylum seekers. You have to provide more resources and make the system more efficient, but you cannot simply end the process for asylum seekers. The numbers [of people being apprehended at the border] have also gone down since the first asylum ban.
The Supreme Court has ruled on a matter of procedure with the second asylum ban, but the stakes are much higher than that. How would you describe them?
Congress has been in charge of asylum law since the asylum statute, in 1980, sought to bring the country into conformity with international standards. The Administration should not be able to radically change asylum laws to the point of effectively eliminating asylum at the southern border, at the stay stage, without a full hearing. For the first asylum ban, the court decided that it would not allow the Administration to upend forty years of unbroken practice. For the second asylum ban, it decided to allow the Administration to do so. The fact is that as bad as the first asylum ban is, the second ban is that much more extreme. The first asylum ban would have at least allowed people to apply for asylum at a port of entry, as hard as that may be. The second asylum ban, we fear, will effectively end asylum at the southern border.
A legal challenge to another Administration policy, called the Migrant Protection Protocols, which forces asylum seekers to wait in Mexico indefinitely while their claims are adjudicated in U.S. immigration courts, is also moving through the courts, and is due to be argued before the Ninth Circuit in October. How does the Supreme Court’s procedural ruling on the second asylum ban affect the status of M.P.P.?
The second asylum ban will have a significant impact on M.P.P.. Interestingly, the M.P.P. appeal in the Ninth Circuit and the first asylum ban are both being argued on the morning of October 1st, before the same panel in San Francisco. The second asylum ban will have a devastating effect on people in M.P.P., because now they’ve been waiting months for the opportunity to seek asylum. We don’t know, and can only assume and hope, that anybody who was placed in M.P.P. before the second asylum ban was issued will still be allowed to apply for asylum, because they tried to apply for asylum and were placed in Mexico. But for people who were placed in M.P.P. after the second asylum ban, this is going to have a devastating effect, because now they will not be allowed to apply for asylum. They’ll have to wait in Mexico, and the only thing they’ll get when they are brought to the United States is an opportunity to seek “withholding of removal” or relief under the Convention Against Torture. Withholding, like asylum, protects individuals fleeing persecution. But it is a much harder form of relief to obtain because the standard of proof is very high, and it also doesn’t provide all the benefits of asylum.
What happens now to the people who came to the U.S. seeking asylum and were placed in M.P.P.?
It depends on whether they were out there before July 16th or not. We’re waiting to see exactly what the Administration does. Supposedly, if you were apprehended before July 16th, you will still get to apply for asylum. But for people arrested after that, it may be that they will only be able to apply for withholding of removal. It’s going to be a complete mess.
How does the second asylum ban fit within the broader immigration agenda of the Administration?
At a more general level, we have seen policies from this Administration directly attacking asylum, like the bans, like M.P.P. We also have seen other policies that the Administration claims were not direct attacks on asylum seekers, but we all know that they were intended to deter asylum seekers. Most notably there was the practice of separating parents from their children at the border, which the public may be surprised to understand is still ongoing. There have been approximately a thousand separations just since the court halted the policy last summer. There’s another family separation hearing this Friday to address the legality of these ongoing separations. And the other thing that’s coming out is that we’re slowly getting the names for the separations that were carried out before the formal zero-tolerance policy was announced. There may be as many as two thousand five hundred of those. People thought that there were two thousand eight hundred to three thousand separations total during the entire Trump Administration. We’re now looking at something more like six to seven thousand separations.
What happens next with the second asylum ban?
It goes to the Ninth Circuit now, and the Ninth Circuit has said that it wants the appeal expedited. They’ve set the argument for December.