The Slatest

Supreme Court Allows Trump to Deny and Deport Asylum-Seekers

Families, mostly from Central America, wait to be transported to a U.S. Customs and Border Protection processing center after they crossed the Rio Grande from Mexico and presented themselves to border agents on September 10, 2019 in Los Ebanos, Texas.
Families wait to be transported to a U.S. Customs and Border Protection processing center on Tuesday in Los Ebanos, Texas.
John Moore/Getty Images

The Supreme Court ruled Wednesday that the Trump administration can begin denying asylum-seekers entry into the U.S. if they came to the country by passing through a third country and did not first seek asylum there. The ruling overturns a federal court injunction first issued in July that put a halt to a policy that targets Central American migrants—predominantly from Honduras, Guatemala, and El Salvador—who arrive at the southern border without having sought asylum in Mexico, or any third country, first.

The Supreme Court stay means the Trump administration can now begin implementing its new asylum policy while legal challenges make their way through the courts. “President Trump’s policy is a dramatic change in the way the federal government treats those seeking safe haven in the United States , and is one of the administration’s most significant efforts to deter migrants at the southern border,” the Washington Post notes.
The legal challenges to the Trump asylum policy are expected to return to the Supreme Court for a full hearing, but that process could take many months before the court has heard and ruled on the legality of the procedure.

Justice Sonia Sotomayor was joined by Justice Ruth Bader Ginsburg in dissent. “Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,” Sotomayor wrote. “[T]he rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere … .” The dissent found that the court should have respected the lower, federal district court decision to grant an injunction based on its finding that the organizations bringing the suit against the government were likely to prevail. The district court, Sotomayor notes, also found the Trump administration’s policy to be “inconsistent with the asylum statute,” that it “skirted typical rulemaking procedures,” and its “explanation for the rule so poorly reasoned that the Government’s action was likely arbitrary and capricious.”

What it will mean on the ground in the immediate term? “It’s not clear how quickly the policy will be rolled out, and how exactly it fits in with the other efforts by the administration to restrict border crossings and tighten asylum rules,” the Associated Press notes. “For example, thousands of people are waiting on lists at border crossings in Mexico to claim asylum in the U.S. And more than 30,000 people have been turned back to Mexico to wait out their asylum claims.”

What the ruling and asylum rule will impact is the “credible fear” portion of the asylum procedure. Most asylum seekers who arrive in the U.S. are able to pass the “credible fear” interview, which serves as an initial screening for asylum. Under the new Trump policy, however, asylum-seekers would automatically fail this “credible fear” test no matter their circumstances if they hadn’t first been denied asylum in at least one other country they traveled through to get to the U.S. In those cases, the asylum-seekers would be entered into fast-track deportation proceedings and returned to their originating countries.

“This is an extraordinary request,” Sotomayor concluded in her dissent. “Unfortunately, the Court acquiesces.”