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'Shocking' decision to allow Trump administration to bar some asylum-seekers, activists say

Calling the decision "shocking" and "disappointing," immigration rights advocates and members of Congress sharply criticized the Supreme Court's decision Wednesday to allow the Trump administration to deny asylum to immigrants who reach the southwestern border without seeking refuge in another country. 

In an unsigned opinion, the Supreme Court overturned an earlier ruling by U.S. District Judge Jon Tigar, who issued a nationwide injunction halting the rule Monday as part of an ongoing lawsuit that has bounced between Tigar and the 9th Circuit Court of Appeals. 

On Tuesday, the 9th Circuit narrowed Tigar's injunction to include only California and Arizona, but denied the government's motion for a complete stay. 

"I am deeply disappointed that the Supreme Court has decided to allow an unconstitutional practice to continue and especially since the case is still in litigation. Seeking asylum is a legal right," said U.S. Rep. Raúl Grijalva.  "It is the 'law of the land' that Trump and his administration are quick to reference time and time again. Now, children and families who are exercising that right are left with no recourse."

"The Supreme Court is giving a green light to this administration to continue its inhumane treatment of vulnerable people," Grijalva said. 

Similarly, Rep. Veronica Escobar wrote on Twitter that Supreme Court had become "another enabler" for the Trump administration. 

"In defiance of America’s values, @realDonaldTrump & his enablers want to curb all immigration (legal included) from countries they consider undesirable by eroding asylum & the fundamental human rights of all migrants. Sadly, they now have another enabler: the Supreme Court," Escobar wrote. 

Justices Sonya Sotomayor and Ruth Bader Ginsberg dissented from the court's decision, saying that the Trump administration's rule could be "arbitrary and capricious," and adding that it was "extraordinary" that the government moved to have the nation's highest court intervene as the case moves forward. 

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"Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution," Sotomayor wrote. "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."

Sotomayor said that it was an "extraordinary request" for the government to ask the court to intervene in the case, especially after Tigar had ruled that the organizations were "likely to prevail" and issued an injunction that was then narrowed to the Ninth Circuit, which includes California and Arizona. 

"Unfortunately, the Court acquiesces," Sotomayor wrote. "Because I do not believe the Government has met its weighty burden for such relief, I would deny the stay." 

"In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country," Sotomayor wrote. She added that the new rule may be "arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions." 

"It is especially concerning, moreover, that the rule the Government promulgated 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," Sotomayor wrote. 

Sotomayor also criticized the court's decision by arguing that because of the tick-tock nature of the case between Tigar and the Ninth Circuit's panel, the Court "simultaneously lags behind and jumps ahead of the courts below." 

"And in doing so, the Court side-steps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rule-making process," she wrote. "I fear that the Court’s precipitous action today risks undermining the inter-branch governmental processes that encourage deliberation, public participation, and transparency." 

"I'm shocked by this decision," said Lynn Marcus, co-director of the Immigrant Justice Clinic at the University of Arizona’s College of Law. "I'm actually shocked that the Supreme Court would allow the executive branch to have so much power and undermine Congress's intent when it passed the refugee act in 1980, which provides specific criteria for asylum, as well as specific bars for seeking asylum." 

"It's clear that this is another executive overreach for power, and that our system and checks and balances, between the two branches of our government is at grave risk," Marcus said. 

While Central American families have driven the rising number of people taken into custody by Border Patrol, people from several countries in Africa, the Middle East, and India have also tried to seek asylum in the United States. 

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"These people have traveled through grueling conditions," to get the U.S. to apply for asylum, Marcus said. And, while "not all hope was lost" because people can still seek asylum under two remaining programs that are exempt for the new rule, "people who would have qualified for asylum before the rule" will be returned to countries where they're likely to be tortured or murdered. 

"The immediate impact is that some people will die, including people who would have qualified for asylum," Marcus said. 

Meanwhile, Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services,  the agency that responsible for asylum officers who review claims at the border, cheered the Supreme Court's decision.

"I applaud the Supreme Court's decision to strike down judicial activists' injunction and allow the Trump Administration to carry out its rule to strengthen the asylum process," he said. "The Administration's rule is designed to safeguard the integrity of the U.S. asylum system and ensure asylum seekers seek protection in the first safe country they travel through," he wrote. 

This statement appears to replace a tweet from Cuccinelli, in which he wrote,"YUGE WIN in #SCOTUS! Recall this was the case in which a judge in Washington DC ruled that an injunction was not appropriate while Judge Tigar in California imposed a nationwide injunction. #SCOTUS ruled that no injunction until case is resolved!" 

Cuccinelli later deleted the tweet, but TucsonSentinel.com and other media outlets saved a screenshot of the acting commissioner's statement. 

This is at least the fifth time that the courts have ruled on the plan since July 15, when the Department of Homeland Security and the Justice Department announced the new rule, which adds a "new bar to eligibility for asylum" to migrants who enter or attempt to enter the United States across the southern border. 

The appeals court has asked the Trump administration and four plaintiffs suing over the asylum rule —East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and the Central American Resource Center — to file responses to the court's latest action by next Thursday.

Tigar halted the policy soon after it was announced, but a three-judge panel of the Ninth Circuit Court of Appeals later ruled the ban could only take effect in Arizona and California, a decision that allowed the policy to be implemented in Texas and New Mexico.

The high court said the decision will remain until the case moves forward. 

Tigar then reinstated the nationwide injunction with his Monday ruling, only to see the appeals court allow the policy to continue in Texas and New Mexico.

After Wednesday’s Supreme Court decision, the rule is now in effect in all four border states.

The rule is just one of several policies, including the Migrant Protection Protocols, that the administration has issued in order to deter asylum seekers. The MPP program requires migrants to return to Mexico as they wait for their asylum hearings. That policy is also being challenged in court but has been allowed to continue as the case winds through the federal courts. 

Officials estimate that around 37,000 people have been "processed" through the MPP since its inception. 

Although apprehension numbers dipped significantly from July to August along the U.S.-Mexico border, yearly totals have already surpassed 2018’s numbers. 

From July to August, apprehensions across the southwestern border dropped nearly 30 percent—the largest drop in the last decade—nonetheless, apprehensions driven by families seeking asylum remain high. 

Surprisingly, the number of people declared "inadmissible" by officials at U.S. ports climbed more than 36 percent after remaining steady throughout the rest of the fiscal year, as part of a policy known as "metering," which kept people waiting just outside of U.S. ports or in shelters in increasingly busy border towns. 

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In August, nearly half of the people declared "inadmissible" at U.S. ports were either parents traveling with their children, children traveling without parents or guardians.  

In the Tucson Sector, the numbers of families taken in custody after surrendering to Border Patrol agents in July, was more than triple was it was a year earlier, and in August 2019, at least 1,256 people traveling as families were taken in custody, nearly quadruple the number of people taken into custody in 2018.

And, in the adjacent Yuma Sector, the number of families had doubled. 

On Tuesday, during a meeting between Vice President Mike Pence, and Mexico's foreign secretary Marcelo Ebard, the vice president "acknowledged the Government of Mexico's meaningful and unprecedented steps to help curb the flow of illegal immigration to the U.S. border," since a

As the Trump administration has clamped down on the border, and moved to reject asylum claims and send thousands of asylum seekers back to Mexico under MPP,  Mexico's own agency for migrants received an increase in funding from $1.2 million dollars to $1.5 million, a meager shift considering the agency's caseload is 20 times higher than it was four years ago. 

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Paul Ingram/TucsonSentinel.com

Asylum seekers just outside the Dennis DeConcini Port of Entry in Nogales, Sonora.

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