Written by: Taher Kameli, Esq.
While the Federal judiciary has generally been the principal obstacle to the anti-immigration efforts of the Trump administration, the Supreme Court has sometimes overruled lower Federal courts and upheld the anti-immigration policies of the Trump administration. For example, the Supreme Court has upheld the “Trump travel ban” and allowed the use of Department of Defense funds to build the United States-Mexico border wall. As another example of the Supreme Court ruling in favor of the Trump administration on an immigration issue, on September 11, the Supreme Court granted a stay of an injunction allowing the Trump administration’s new asylum restrictions to take effect.
On July 16, the Trump administration published a new rule that generally makes migrants ineligible for asylum protection in the United States if they passed through another country while traveling to the United States, but failed to apply for asylum protection in such other country. On July 24, U.S. District Court Judge Jon S. Tigar in San Francisco, California issued a nationwide preliminary injunction against this anti-asylum new rule of the Trump administration.
On August 16, the U.S. Court of Appeals for the Ninth Circuit limited Judge Tigar’s preliminary injunction to only apply within the Ninth Circuit, and not nationally, but also ordered that Judge Tigar “retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit”. On September 9, Judge Tigar exercised this “jurisdiction” and reinstated his nationwide injunction.
The Supreme Court (in the case of Barr v. East Bay Sanctuary Covenant, 2019 U.S. LEXIS 4619 (S. Ct. 2019)) overruled Judge Tigar and held, “The application for stay presented to Justice Kagan and by her referred to the Court is granted. The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.
If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment”.
Justice Sonia Sotomayor (joined in by Justice Ruth Bader Ginsburg) wrote a dissenting opinion, stating, “Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although the 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. . . . The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions.
It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere – without affording the public a chance to weigh in. . . .
In sum, granting a stay pending appeal should be an ‘extraordinary’ act. . . . Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. . . . Not long ago, the Court resisted the shortcut the Government now invites. . . . I regret that my colleagues have not exercised the same restraint here. I respectfully dissent”.
It is important to remember that the above-described decision only addressed the issue of whether an injunction should issue concerning the Trump administration’s new asylum restrictions; it does not resolve the issue of the ultimate validity of the Trump administration’s new asylum restrictions, for which litigation is pending. While the Trump administration can claim temporary victory (and will use it to block asylum requests for the time being), a litigation battle (possibly again headed to the Supreme Court) will continue to move forward on the merits and permanent validity of the Trump administration’s new asylum restrictions.
To be successful in this continuing litigation, as well as in any other immigration litigation, it is important for immigrants to be represented by skilled immigration litigation counsel, such as Kameli Law, which has been successful in court in many immigration cases for many years. If you need help on any asylum or other immigration issue, please contact the Kameli Law, at firstname.lastname@example.org or 312-233-1000, for representation.