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Arizona advocates, immigration lawyers call SCOTUS asylum ruling 'devastating' and a 'death knell'

A day after the Supreme Court decided to allow the Trump administration to deny asylum to immigrants who reach the southwestern border without seeking refuge in another country, immigration lawyers and advocates denounced the the policy. 

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, but on Wednesday, the nation's highest court decision undid that limit, allowing the Trump administration to employ the bar, even as the lawsuit moves forward. 

"Setting aside the power grab by the president in shoving Congress aside, the idea of cutting off access to asylum for people fleeing persecution is abhorrent and truly sickening," said Lynn Marcus,  co-director of the Immigrant Justice Clinic at the University of Arizona’s College of Law. 

Mo Goldman, a Tucson immigration attorney said that the bar on asylum seekers "accomplishes the goal of what this administration has wanted to do with asylum: try and shutdown the entire way that people legally seek protection under U.S. law, and international humanitarian laws." 

"We seen this in many different ways, and the administration is clearly trying to close up, or eliminate the ability for people who need asylum to come to the U.S.," Goldman said. "And, this is a death knell, literally, for asylees fleeing violence. Ultimately, this is going to force people to return back to places where they're at risk of persecution, or may lose their very lives, or they try to make it in Mexico, where they're at risk from the cartels." 

"It's un-American, and it's a violation of due process rights," Goldman said. "The administration is trampling on the laws of the U.S., on the Constitution, by refusing to follow the law, and just making up these policies as they go along." 

Joanna Williams, the director for education and advocacy at the Nogales-based Kino Border Initiative said the decision was "devastating" for asylum seekers in Nogales, Sonora. 

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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. 

In mid-June, a 6-year-old Indian girl, Gurupreet Kaur, died when she, along with her mother and sister, attempted to cross into the United States in the desert near Lukeville, Arizona to seek asylum in Arizona. 

Already, about 455 Cubans and 191 Venezuelans are currently stranded in the city as they wait to be processed by immigration officials, Williams said.

This decision "clearly undermines the Congressional intent of asylum protections and will result in people being deported to danger and death. The transit country asylum ban ignores the weaknesses of asylum systems in other countries, which make it difficult for migrants to apply for asylum and receive a decision," Williams said. "The announcement also ignores the rising rates of violence and homicides in Mexico, which means that Mexico is not a legitimate resettlement option for many individuals." 

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. 

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. 

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.

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

"Courts, not cartels should determine whether someone can live in the U.S., or not," said Ali Noorani, executive director for the National Immigration Forum. "This ruling validates the Trump administration’s mission to close our doors to those most in need," he said. "It exacerbates a humanitarian crisis and does nothing to make our country safer."

On Wednesday, U.S. Reps. Raúl Grijalva and Veronica Escobar criticized the decision, and U.S. Rep. Ann Kirkpatrick joined them Thursday, with her own comment. 

"The President’s policy of turning away families seeking refuge is un-American. It goes against our values as a nation. I believe it is an abuse of power," Kirkpatrick said.  "I disagree with the Supreme Court’s decision, and I hope we find a more humane solution to dealing with the humanitarian crisis at our southern border."

Neither of Arizona Senators, Sen. Martha McSally or Sen. Kirsten Sinema, responded to requests for comment on the court’s decision.

DHS officials also failed to respond to requests for comment, though the agencies involved often do not comment on ongoing litigation. 

Michelle Brané, the senior director of the Women's Refugee Commission 's Migrant Rights and Justice program, said that she was "heartbroken" by the decision. 

"This decision affects not only Central Americans, but anyone except Mexicans fleeing violence in their home countries, including those fleeing religious pesecution, political dictatorships, ethnic cleansing, and war, ranging from Venezuelans and Congolese, to Cubans and Nicaraguans. This is a fundamental betrayal of the promise of America as a beacon of hope and our rule of law." 

Along with the acting director of the U.S. Citizenship and Immigration Services, who tweeted and then deleted praise for the decision, the head of the National Border Patrol Council, Brandon Judd, said that it was the "right decision." 

"This ruling, obviously, will not allow people to exploit the immigration loopholes that have existed," Judd told KTAR News, adding. "And as long as we remove that magnet, then you’re going to see a drop in that illegal immigration." 

The NBPC has been a long supporter of Trump, and in April, Judd push hard to allow Border Patrol to conduct "credible fear interviews" often the first step for people to legally seek asylum in the United States. 

Benjamin Johnson, the executive director of the American Immigration Lawyers Association made a similar argument. 

"By lifting this nationwide injunction in East Bay v. Barr, the Supreme Court's decision is putting the lives of asylum seekers at risk as this legal challenge continues to move forward in the lower courts," Johnson said. "Vulnerable migrants are are already at risk due to numerous other policies designed to prevent them from accessing the protections established in U.S. law."

Along with Johnson's comments, AILA also pushed several recommendations to "improve the speed and fairness" of the asylum process. 

This includes deploying more trained asylum officers to conduct credible fear interviews, and a policy to allow asylum officers to grant asylum to "clearly eligible border arrivals."

The group also said that officials should avoid detaining migrants, and instead put people in "alternative-to-detention" programs. And, AILA said that DHS should use the Family Case Management Program, which had a "near perfect" appearance rate.

Introduced by the Obama administration in January 2016, the program for families required people to check-in with U.S. Immigration and Customs Enforcement, and arrive at court hearings.  Out of 954 participants, just 23 failed to come to check-in or arrive at court, according to DHS statistics. 

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The program operated in five metro areas, including Baltimore, Los Angeles, New York, Miami, and Chicago before the Trump administration ended the program in April 2017. 

DHS officials argued that FCMP was costly, but an analysis of the program showed that FCMP cost an average of $36 per day for a family, while DHS spends $319 per day to hold families in detention centers, according to a 2019 report from the Congressional Research Service. 

The group also argued that the Justice Department should restore the judicial authority and independence for immigration judges, a criticism of a series of policies put into place to pressure judges to speed up their decisions, and deny asylum claims. AILA said that judges should have the independence to manage their own docket to "ensure balanced, fair decisions." 

AILA also recommended that the Trump administration provide lawyers to migrants. 

Case continues in court 

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. 

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. 

"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."

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.

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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. 

Even as the administration presses forward on MPP, William Barr, the U.S. Attorney General has also pushed immigration judges with the highest rates of denying asylum higher into the courts, moving them into the 21-member Bureau of Immigration Appeals, which is charged with interpreting and applying immigration laws.

And, Barr, like his predecessor Jeff Sessions has also intervened in particular BIA decisions when he in unhappy with their rulings. 

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

A boy and his father, both asylum seekers, wait just outside the Dennis DeConcini Port of Entry in Nogales, Sonora.

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