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Trump’s asylum ban may also be a loyalty test for the Supreme Court

As soon as this week, the Supreme Court could weigh in on a fraught battle over whether many victims of persecution may seek asylum in the United States — or whether the Trump administration can effectively tell them go back to Mexico.Last week, the last round of briefs were filed on a stay request involving the Trump administration’s rule, announced in July, that would remake American asylum policy at the Southern border. In the words of a federal court, the new rule would “deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.” The same court blocked the rule just days after it was announced, in a case called East Bay Sanctuary Covenant v. Barr .The Trump administration wants its rule reinstated. So, in what’s become a familiar practice when lower courts suspend this administration’s legally dubious policies, it asked the Supreme Court to stay the lower court’s decision in late August. Because the briefing is complete in this case, the Supreme Court could rule on it at any time — and will likely do so soon.It’s the latest legal fight involving familiar players: a president eager to push hard-line immigration policies, an administration willing to read the law aggressively to advance those policies, a lower court judge who reads the law less permissively, and a Supreme Court dominated by conservative justices that Trump’s come to view as his ideological allies. But this case has a twist. The legal theory advanced by the Trump administration in East Bay — the theory that the administration has sweeping authority to limit who may seek asylum — is in tension with a broader project that enjoys the enthusiastic support of the Supreme Court’s most conservative members, diminishing the power of the executive branch to shape policy without going through Congress. Indeed, Trump’s arguments are hard to square with an opinion penned by Justice Neil Gorsuch, the president’s first appointee to the Supreme Court. East Bay , in other words, provides an early test of how a core conservative project will shake out, and whether this Court is willing to apply the strict limits it appears eager to impose on agencies such as the Environmental Protection Agency to policymakers who advance conservative goals. What’s at stake in East Bay , in other words, is whether the Court’s conservative majority will stick to its stated principles — or whether it only applies those principles selectively to undermine liberal policies.What is the asylum ban?The rule at issue in East Bay seeks to address the influx of migrants traveling from Central America to the United States, often crossing the length of Mexico in the process. In the last year, tens of thousands of migrants from Guatemala, Honduras, and El Salvador arrived at the US-Mexico border, often after fleeing violence in their home nations.Under federal law, any foreign national who “who is physically present in the United States or who arrives in the United States” may seek asylum in this country, although the law does recognize a few exceptions to this general rule. To receive asylum, a foreign national generally must show that that they faced persecution, or that they have a “well-founded fear” of persecution, on the basis of race, religion, nationality, membership in a “particular social group,” or because of their political views.The Trump administration’s rule, however, would place a sweeping limit on who can seek asylum within the United States. Under this rule, almost any foreign national “who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum.” Thus, if an asylum seeker crossed through Mexico to get to the United States, they are out of luck.This categorical bar on asylum does contain three exceptions. Most importantly, it allows migrants to seek asylum in this country if they “applied for protection from persecution” in one of the nations they traveled through, but only if the foreign national “received a final judgment denying the alien protection in such country.” This new rule would significantly expand the universe of immigrants who are ineligible for asylum. By law, two narrow categories of immigrants are denied asylum if their journey took them through another nation: those who can be removed to a “safe third country” outside of the United States, and those that are firmly resettled in another country prior to arriving in the United States.” But the “safe third country” exemption only applies to countries that the United States has a formal agreement with — we currently only have one with Canada — and it is quite a stretch to say that someone who merely passed through Mexico on the way to the United States is “firmly resettled” in Mexico.Nevertheless, the Trump administration claims that it has extensive authority to create new categories of immigrants who may not seek asylum without having to go through Congress. In its application for a stay of the lower court’s decision, the administration claims that it has a broad power to “establish categorical ‘limitations and conditions’ on asylum eligibility, beyond those already set out in the statute,” and that this power includes the ability to lock most Central American migrants out of the asylum process.Can they do that?The question that looms over this issue: Can the administration change asylum policy the way that Trump is proposing without going through Congress? The short answer is that it all depends on just how much unchecked power the Supreme Court is willing to hand to the executive branch. The Trump administration points to a provision of federal law allowing the attorney general to “establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum.” Though the asylum statute only ...Read more

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