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Trump administration asks Supreme Court to implement asylum ban

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Trump administration asks Supreme Court to implement asylum ban

  • The highway that leads to the U.S.-Mexico border in Nogales, Sonora.
    Paul Ingram/TucsonSentinel.comThe highway that leads to the U.S.-Mexico border in Nogales, Sonora.

Trump administration officials have asked the U.S. Supreme Court to OK a ban on asylum claims by people who crossed the U.S.-Mexico border without going through a crossing point.

In an emergency appeal filed late Tuesday, Solicitor General Noel Francisco asked the nation's highest court to undo a temporary restraining order put in place after civil rights groups sued, arguing that the bar was illegal.

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."

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 Jeff Sessions after Sessions 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 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."

The case was filed in federal court in San Francisco on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles.

On November 20, U.S. District Court Judge Jon Tigar ruled that the ban "irreconcilably conflicts" with federal law and the "expressed intent of Congress" and blocked Trump administration officials from implementing the ban before a hearing on December 19.

Unwilling to wait for the December 19 hearing, the government appealed to the 9th Circuit Court, but was rebuffed last Wednesday 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 effect of the Rule together with the Proclamation is to make asylum unavailable to any alien who seeks refuge in the United States if she entered the country from Mexico outside a lawful port of entry," wrote Bybee.

In his appeal, Francisco wrote that the injunction was "unwarranted because it virtually guarantees that the harms the rule addresses will continue to occur during litigation."

"At a minimum, this Court should narrow the injunction to cover only specific aliens respondents identify as actual clients in the United States who would otherwise be subject to the rule," Francisco wrote.

"Taken together, these measures are designed to channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner; deter unlawful and dangerous border crossings; and reduce the backlog of meritless asylum claims," he said.

There are more than 200,000 asylum cases that have yet to be reviewed, representing about 26 percent of the courts' total backlog of nearly 767,000 removal cases. This is the largest backlog in history, and follows a long-term trend that began under the Clinton administration, but has accelerated in the past four years.

Overall, people could wait nearly three years before their case is heard in federal immigration courts.

In Arizona alone, there are around 9,800 immigration cases backlogged in Arizona, around 8,300 in Phoenix and around 730 in Tucson, according to figures compiled by the Transactional Records Access Clearinghouse, a non-partisan project at Syracuse University.

And, denials are growing at a faster clip. In 2018, immigration judges denied 65 percent of claims, up significantly from six years ago when denials were just 42 percent, TRAC said.

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