E.g., 10/21/2019
E.g., 10/21/2019

Supreme Court Asylum Ruling Latest Sign Judiciary Is Not the Brake on the Trump Administration that Immigration-Rights Activists Sought

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Supreme Court Asylum Ruling Latest Sign Judiciary Is Not the Brake on the Trump Administration that Immigration-Rights Activists Sought

An apprehended migrant sits in a truck with his hands in his face

A migrant apprehended near the U.S.-Mexico border in Texas receives medical attention. (Photo: Glenn Fawcett/U.S. Customs and Border Protection)

In the latest example of the Supreme Court's acceptance of executive authority in immigration policy, the justices on September 11 declined to stay a new Trump administration rule that bars asylum for nearly all migrants who transit through another country before reaching the U.S.-Mexico border. The unsigned opinion offers the most recent notice that those challenging the administration’s immigration agenda, in this case arguably the most significant change in U.S. asylum policy since the modern asylum system was established in 1980, cannot count on the federal judiciary as an automatic brake.

In combination with other actions—including the Migrant Protection Protocols (MPP), under which more than 40,000 migrants have been returned to Mexico to await U.S. immigration court hearings, a June agreement that has resulted in Mexico both accepting more migrants under MPP and beefing up its own enforcement efforts, and recent “asylum cooperation” agreements with Guatemala, El Salvador, and Honduras—the administration has dramatically reset the policy landscape on asylum.

These interlocking efforts to deter migrants arriving largely from Central America have also brought into sharp focus an emerging but unmistakable trend: this administration, more than any other, has aggressively sought quick review by the Supreme Court of legal challenges to its immigration actions, by short-circuiting the standard appellate process. And the court has mostly, if not always, shown deference to the assertion of executive authority in immigration matters. In the five instances in which the Supreme Court has issued rulings related to the Trump administration’s immigration policies—either on the substance or on whether to permit the measures to go forward while litigation proceeds—a majority of justices have consistently sided with the executive branch.

That outcome is not one opponents of the administration’s immigration policies expected. Buoyed by initial success against the travel ban and other litigation in lower federal courts across the country, opponents anticipated the judiciary would be a reliable counterforce. Yet as the dust has settled, that theory has encountered its limits.

The administration’s combination of unprecedented deterrence measures and Supreme Court deference has allowed it to create an effective, multilayered framework to significantly discourage the flows of migrants seeking asylum and other protection at the border. Yet migrants may adapt to the new reality, potentially by turning to clandestine and dangerous routes, seeking to evade detection by the Border Patrol.

Initial Roadblocks Prove Minor for the Transit-Country Rule in the Courts

The administration’s asylum policy issued July 16 makes ineligible for asylum all noncitizens who enter or attempt to enter the United States at the U.S.-Mexico border on or after that date, if they transited through another country on their way and failed to apply for protection and receive a final determination in that country. There are limited exceptions. The ban does not apply to those who have traveled through countries whose governments are not party to international protection treaties (although Mexico is party to the relevant treaties, making this exception irrelevant), and for victims of severe forms of trafficking. The policy was issued as an interim final rule, thus allowing it to go into effect without public comment.

However, the rule does not completely eliminate the possibility for migrants to receive any protection. If an asylum seeker can demonstrate that it is more likely than not that his or her life or freedom will be endangered based on nationality, race, religion, political opinion, or membership in a particular social group, or that he or she will be tortured upon return to their country of origin, the migrant can still qualify for protection in the United States under the statutory provision of withholding of removal or the United Nations Convention against Torture. Unlike asylum, neither of these forms of relief offers a pathway to permanent residency. The rule also does not apply to Mexicans, as they would not have transited through another country to get to the United States.

Immediately after the rule was issued in July 2019, a coalition of nonprofit organizations sued to enjoin its implementation. Their arguments were twofold: that the rule was inconsistent with the statutory provision that allows all noncitizens who arrive at a U.S. port of entry or in the country to apply for asylum, except if they had previously firmly resettled in a third country—not merely transited through it. The statute also provides that migrants can be returned to a safe third country in which they would have access to an asylum system provided such an agreement existed between the United States and that country. The plaintiff organizations also argued that the rule violated the notice-and-comment period requirements of the Administrative Procedures Act (APA).

The government, in response, argued that it has the discretion to establish by regulation additional limitations and conditions for asylum, as long as they are not in conflict with it the asylum statute. And its stated reason for seeking the expedited intervention by the Supreme Court was the “ongoing crisis at the Southern border.”

Litigation in the case bounced around three levels of federal courts. The district judge in the Northern District of California who initially heard the case blocked it from going into effect nationwide on July 24. Upon appeal to the Ninth U.S. Circuit Court of Appeals, a three-judge panel on August 5 allowed the district judge’s injunction to stay in place, but only in the Ninth Circuit—affecting migrants arriving at the U.S. border in Arizona and California. That meant the rule could go into effect in Texas and New Mexico (and any other state outside the Ninth Circuit where asylum cases were being heard).

While the case was still being reviewed in the Ninth Circuit, on August 26, the administration sought the Supreme Court’s intervention to block the injunction from going into effect anywhere in the country. The challengers brought additional evidence to the district court that a nationwide injunction was necessary, because asylum seekers may relocate to any part of the country. The district court restored the nationwide injunction, only to be limited again by the appeals court on September 10. The next day, the Supreme Court ruled, allowing it to go into effect nationwide, at least until the case is heard on the merits and reaches the court for its final determination.

A New Form of Deterrence

The transit-country asylum rule is principally intended to affect migrants from El Salvador, Guatemala, and Honduras, who made up 73 percent of the more than 800,000 people apprehended at the U.S.-Mexico border in the first 11 months of fiscal year (FY) 2019. Of the migrants apprehended from those three countries, 71 percent were traveling together as families, the population most likely to seek asylum.

Important as the new rule is, it is only the most recent in a series of measures the administration has methodically put in place to stem the flow of migrants from Central America and beyond. In January, the Department of Homeland Security (DHS) started sending arriving non-Mexican migrants back to Mexico to await their immigration court hearings under MPP. By the end of August, more than 42,000 people had been returned under MPP, only 6 percent of all arriving migrants in those eight months. However, the share returned under MPP has been increasing steadily as time goes on: in July, 16 percent of arriving migrants were sent to Mexico.

A June agreement between the United States and Mexico—agreed to after President Trump threatened to impose tariffs on Mexican imports—has led to Mexico both accepting more migrants returned under MPP and bolstering its immigration enforcement efforts. The Mexican government has deployed nearly 25,000 members of its new National Guard to crack down on illegal immigration at its southern border with Guatemala and at its northern border with the United States. Reports of roadblocks acting as security checkpoints have appeared in highways throughout southern Mexico, increasing enforcement actions against migrants traveling in the country’s interior. These combined efforts seem to already be working: between May and August of this year, apprehensions of migrants crossing the U.S.-Mexico border decreased 62 percent.

These developments, along with the new transit-country asylum rule, represent unprecedented interlocking actions to deter the flows of migrants from Central America and beyond arriving at the U.S.-Mexico border. While Mexico upped its enforcement in response to U.S. pressure in 2014 and 2015, migrants fleeing persecution, as well as economic migrants hoping to prolong their stay in the United States, could still hope to apply for asylum if they made it to the United States. With the implementation of the new rule, that hope no longer exists.

To add to this arsenal, the United States signed an agreement with Guatemala on July 26 that would allow non-Guatemalan asylum seekers who arrive in the United States to be sent to Guatemala to apply for asylum there. Its immediate implementation was prevented by Guatemala’s Constitutional Court, though reports suggest that the court may soon allow it to go into effect. El Salvador and Honduras signed similar agreements with the United States on September 20 and 25, respectively.

Pattern of Success in the Supreme Court

The September 11 Supreme Court ruling further confirms the court’s willingness to yield to the Trump administration’s executive actions on immigration.

Full Deference to Executive Authority

In three of the five cases where the court ruled on the Trump administration’s immigration policies, the Supreme Court permitted the implementation of executive actions without reservation. The court allowed for lower-court injunctions to be stayed pending further proceedings in Barr v. East Bay Sanctuary Covenant (the transit-country asylum rule) and in Trump v. Sierra Club (a lawsuit challenging the use of military funds to construct sections of the border wall). In addition, the court upheld the administration’s travel ban on June 26, 2018 in Trump v. Hawaii.

Since the Supreme Court majority typically does not explain its decisions on stays, the public cannot know the full reasoning behind the justices allowing administration actions to go into effect in Barr v. East Bay and Trump v. Sierra Club. Yet, it is clear that the justices found some merit in the elements of the government’s arguments in each case.

In Barr v. East Bay, much of the government’s argument relied on its discretion to establish additional bars to asylum and its assertion that the rule was necessary to respond to the “crisis” at the U.S.-Mexico border.

In Trump v. Sierra Club, the justices provided a short and nonspecific explanation for allowing wall construction to move forward with Defense Department funds, stating that “the Government has made a sufficient showing at this stage” that the Acting Defense Secretary’s use of his authority to transfer funds from one project to another was lawful. The government, in this case, had argued that the Acting Secretary’s assertion that the transfer of such funds was in the national interest should not be “second guessed” by the courts.

In the travel ban case, Trump v. Hawaii, the Supreme Court found that the president has broad discretion to limit entry into the United States of classes of noncitizens, and that it is improper to encroach on executive authority just because of discriminatory statements the president may have made, if they are not directly associated with the president’s official actions. Prior to the June ruling on the merits, the high court had stayed a nationwide injunction on the ban in December 2017.

Almost-Full Deference to Executive Authority

In a fourth case, Department of Commerce v. New York, which challenged the administration’s decision to add a citizenship status question to the 2020 Census, the Supreme Court ruled for the challengers, but did so for a very narrow reason. The court emphasized that the Commerce Secretary has the authority to make decisions about how to conduct the Census using his own judgment, and that the justices “may not substitute our judgment for that of the Secretary;” he only has to provide a reasonable explanation for the decision. It was only because the stated reason for the decision to include a citizenship question on the Census—to better enforce the Voting Rights Act—clearly was contrary to the evidence offered for the department’s decision-making, which lacked any mention of the Voting Rights Act until midway through the deliberative process, that the court ruled against the government.

The Exception

So far, the court’s only exception to its consistent deference to executive authority in immigration matters was the December 2018 ruling in Trump v. East Bay Sanctuary Covenant, when the Supreme Court allowed a lower-court injunction, blocking a ban on asylum for people who crossed the border illegally, to remain in effect. The justices did not give any explanation for its ruling. It is likely that the high court’s understanding was that anyone arriving in the United States was potentially eligible for asylum under the then existing immigration laws and regulations. And the statute is clearer in that case, as it expressly states that regardless of how someone enters the country, they may apply for asylum, and no new regulations, such as the July 16 rule, had been issued at that time.

Simultaneous Policy Changes and Supreme Court Actions Clear the Way for Administration’s Immigration Priorities

The United States has never before attempted to stem migration with the combination of deterrence measures now in effect. Whether it is bilateral pressure on foreign governments or using every tool in the regulatory toolbox, the administration has put in place a far more enduring structure to support its deterrence agenda. How effective the combined new policies will be remains to be seen. It is quite likely that migrants will adapt to the new reality. They may take more clandestine and dangerous routes, with stronger reliance on smuggling operations, or corrupt practices among enforcement authorities in the transit countries may play a more pronounced role. These outcomes are not yet clear.

However, the signal from the Supreme Court is much more apparent. The Court has not shown any appetite for challenging the traditional deference to executive authority in immigration matters. The next test—and a big one—is whether a majority of justices will offer similar deference to the administration’s actions in the three cases before the court that challenge the termination of the Deferred Action for Childhood Arrivals (DACA) program, which gives legal protections to unauthorized immigrants brought to the United States by their parents as children. It is a case that will inevitably be decided in the middle of a highly charged election cycle, putting immigration issues, once again, at the center stage of domestic politics.

National Policy Beat in Brief

Administration Issues Rule to Allow Indefinite Family Detention; States Sue. On August 23, the Department of Homeland Security (DHS) issued the final version of a rule that, if allowed to go into effect, could dramatically expand family immigration detention. Since 1997, a court settlement has governed the care of children in immigration detention, and in 2015, a federal judge interpreted the settlement to cover children held with their parents, and limited the detention of such family units to 20 days in facilities that had not been licensed by state authorities. According to the agreement, families could be held together for a longer period in licensed facilities, but since no states have a system for licensing family detention facilities, DHS has not been able to put that provision into effect.

The final rule attempts to avoid this limitation on family detention by creating a federal licensing process for family detention facilities, which would require them to meet less strict and detailed standards. The government has argued that the standards would still meet the settlement agreement’s requirements. Putting this change into practice is another question: currently, the U.S. government has the capacity to hold about 2,500 to 3,000 family members in detention, while tens of thousands have been arriving at the border every month. The rule also expands the instances in which unaccompanied children can be held in higher security facilities, and allows the government to disregard standards of care in emergency situations.

The rule is being challenged in federal court by the original plaintiffs from the 1997 agreement, as well as by a group of 19 states and the District of Columbia. The challengers argue that the administration’s rule is not consistent with the requirements of the agreement.

DHS Reprograms Funds to Pay for Additional Detention Beds and Court Space. At the end of July, DHS notified Congress that it would reprogram $271 million from other projects to fund immigration enforcement priorities. Of the funds, $116 million will be used to pay for about 7,000 additional Immigration and Customs Enforcement (ICE) detention beds, as well as transportation from Customs and Border Protection (CBP) facilities to ICE detention facilities and immigration courts. The other $155 million will be used to construct and operate temporary immigration courts dedicated to hear cases of immigrants sent back to Mexico under the Migrant Protection Protocols (MPP, otherwise known as Remain in Mexico). The funds come from a variety of sources within DHS, including ICE, CBP, and the Transportation Security Agency, but the majority ($155 million) come from the Federal Emergency Management Agency’s Disaster Relief Fund.

By September 16, DHS had opened at least one additional immigration court dedicated to MPP cases, in Laredo, Texas, and expected to open another soon, in Brownsville, Texas. The court in Laredo will hear about 300 cases a day, with judges video-teleconferencing in from other locations.

DHS Undertaking Negotiations around Immigration Cooperation with Countries in the Region. The Trump administration has been working to expand regional efforts to manage and deter Central American migration to the United States. After succeeding in pressuring Mexico to increase immigration enforcement, the administration signed agreements with Guatemala on July 26, El Salvador on September 20, and Honduras on September 25, although they have not yet gone into effect. The agreement with Guatemala would allow non-Guatemalan migrants who arrive in the United States seeking asylum to be sent to Guatemala to seek asylum there, and the deals with El Salvador and Honduras appear to do the same. Acting Homeland Security Secretary Kevin McAleenan has met with officials from other Central American countries and Colombia to negotiate further cooperation. Panama’s president has said his government will not sign a safe-third country agreement with the United States, but Panama’s migration authorities do collect biometric information from migrants passing through and share that information with the United States. A safe-third country agreement, different from the “asylum cooperation” agreements signed with Guatemala, El Salvador, and Honduras, would require asylum seekers who pass through the designated third country before reaching the United States to apply for asylum in that country.

In addition to the agreement signed with the United States on September 20, El Salvador announced on September 11 that it would increase border security, sending 800 police officers to its northern and southern borders to try to stop unauthorized migration.

USCIS Reverses Course after Denying Medical Deferred Action Requests. U.S. Citizenship and Immigration Services (USCIS) notified Congress on September 19 that it will continue to process affirmative deferred action requests, many from unauthorized immigrants receiving treatment in the United States for serious illnesses. This backtracking came more than a month after the agency decided to stop processing nonmilitary deferred action requests filed after August 7, and after sustained public and congressional outcry, as well as the filing of a federal lawsuit in Massachusetts. After initially determining that even prior requests would be denied, USCIS changed course September 2 and said all 791 cases pending as of that date would be processed before the September 19 decision to continue accepting new applications as well.

USCIS Proposed Rule Would Lengthen Work Authorization Processing Time for Asylum Seekers. USCIS issued a proposed rule on September 9 that would eliminate the current regulatory requirement that the agency process asylum seekers’ applications for work authorization within 30 days. USCIS says its resources are stretched too thin to maintain this timeline, and under the proposed rule, there would be no time limit for processing. Asylum seekers cannot apply for work authorization until their asylum cases have been pending for at least 150 days. The public has until November 8 to comment on the proposed rule, following which USCIS will review, respond to the comments, and publish a final rule.

State Policy Beat in Brief

Arizona Lowers Tuition Rate for Unauthorized Immigrant State Residents. The Arizona Board of Regents voted August 22 to extend a reduced college tuition rate to unauthorized immigrant students who graduated from high schools in the state. The tuition rate—150 percent of the in-state tuition rate—was previously extended to students with protections under the Deferred Action for Childhood Arrivals (DACA) program, for unauthorized immigrants who were brought to the United States by their parents as children. It now is available for all unauthorized immigrants. This reduces the amount they would have to pay to attend state universities, from $30,000 per year (the tuition rate for out-of-state students) to about $16,000 per year.

New Jersey County Sues State over Limitations on ICE Cooperation. The Ocean County, New Jersey, Board of Chosen Freeholders filed a federal lawsuit September 18 against State Attorney General Gurbir Grewal over his law enforcement directive that prevents local law enforcement cooperation with U.S. Immigration and Customs Enforcement (ICE) in most cases. Grewal issued the directive in November 2018, and it went into effect in March 2019. Among other provisions, it prohibits state and local law enforcement from notifying ICE of the upcoming release of someone in jail or of holding that person beyond their release date on the basis of an ICE detainer, unless that person has been charged with or in the past convicted of a serious crime, or unless a federal judge has signed an order to remove the person from the United States. The directive also prevents law enforcement agencies from providing ICE with access to their databases if those databases are not publicly available. The county freeholders argue in the lawsuit that the state’s action preventing county cooperation with the federal government is preempted by the federal government’s exclusive “authority over the regulation and enforcement of immigration.”