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Supreme Court rejects Trump administration appeal over asylum ban

The U.S. Supreme Court rejected the Trump administration's attempt to end-run a decision by a federal judge, and implement new rules barring asylum claims by anyone who entered the United States between border crossings.

In a 5-4 decision Friday, the justices refused the administration's request to put on hold a federal judge's order that temporarily blocks Trump from moving forward with the policy. Chief Justice John Roberts joined with Justices Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer. 

This means that the policy will be blocked until at least mid-March after U.S. District Judge Jon S. Tigar decided to extend his own temporary restraining order that began in November as part of a lawsuit by civil rights groups. 

In early November, Homeland Security Secretary Kirstjen Nielsen and newly installed acting Attorney General Matthew G. Whitaker — who took over the post from his boss Sessions after he was sacked by the White House just after the midterm election — published an interim rule that would allow officials at the Homeland Security and Justice departments to amend regulations, and DHS to create a "screening process" specifically to bar people from seeking asylum if they entered the United States between ports of entry.

The following day, a group of civil rights groups, including the ACLU on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles, sued the Trump administration, arguing that the ban was illegal and in "direction violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar."

Tigar agreed with the plaintiffs, and said on November 20, that the ban "irreconcilably conflicts" with federal law and the "expressed intent of Congress" and blocked Trump administration officials from implementing the ban before the hearing on December 19.

Following that hearing, Tigar extended his temporary restraining order for 90 days, and a hearing is set for March 19. 

In his new opinion, Tigar wrote that "if anything, the inconsistency between the new regulation and the immigration laws has been stated more clearly. The harms to those seeking asylum are also even clearer, and correspondingly the public interest more plainly supports injunctive relief."

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While the injunction was in place, Trump administration officials have twice tried to end-run around Tigar's ruling. Unwilling to wait for the December 19 hearing, the government appealed to the 9th Circuit Court, but was rebuffed by a three-judge panel. In an order written by Justices Edward Leavy, Jay S. Bybee, and Andrew Hurwitz, the court ruled: "We agree with the district court that the Rule is likely inconsistent with existing United States law. Accordingly, we DENY the Government’s motion for a stay."

The administration then filed an emergency appeal with the U.S. Supreme Court. In his filing, Solicitor General Noel Francisco, wrote that an emergency appeal was necessary because the United States has "experienced a surge in the number of aliens who enter the country unlawfully from Mexico," and that a "temporary suspension of entry by aliens who fail to present themselves for inspection at a port of entry along the southern border is in the Nation’s interest."

The move to ban asylum seekers who crossed the U.S.-Mexico border without entering through a U.S. port is just one of several policy maneuvers the Trump administration has announced in an attempt to deal with large numbers of families and unaccompanied minors fleeing from three countries in Central America, and parts of Mexico. 

On Thursday, Nielsen announced that people who seek asylum in the United States may be returned to Mexico for "the duration of their immigration proceedings." 

The new policy will leave hundreds in Mexico as the U.S. immigration system has slowed to a crawl amid increasing court backlogs, and advocates have said that by leaving often vulnerable people in the borderlands, they will be preyed upon by gangs, or pressured into trying to cross illegally by drug cartels.

Another policy, which attempted to restrict the grounds that people could use in court to argue for asylum was also rejected by a federal judge in Washington D.C. 

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Paul Ingram/TucsonSentinel.com

The newly hardened Dennis DeConcini port of entry is visible from the line of pedestrians waiting to enter the U.S. through the Morley entrance in Nogales, Son.

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