WASHINGTON — The Supreme Court on Wednesday allowed the Trump administration to bar many Central American migrants from seeking asylum in the United States. The court said the administration may enforce new rules that generally forbid asylum applications from people who had traveled through another country on their way to the United States without being denied asylum in that country.
A federal appeals court had largely blocked the new policy, but the justices, in a brief, unsigned order, allowed it to go into effect while legal challenges move forward. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
In a Supreme Court brief, the solicitor general, Noel Francisco, representing the administration, said the new policy was needed to address “an unprecedented surge in the number of aliens who enter the country unlawfully across the southern border and, if apprehended, claim asylum and remain in the country while their claims are adjudicated.”
Under the policy, which was announced July 15, only immigrants who have been denied asylum in another country or who have been victims of “severe” human trafficking are permitted to apply in the United States. “The rule thus screens out asylum seekers who declined to request protection at the first opportunity,” Francisco wrote.
Under the rules, Hondurans and Salvadorans must seek and be denied asylum in Guatemala or Mexico before they can apply in the United States. Guatemalans must seek and be denied asylum in Mexico.
The rules reversed long-standing asylum policies that allowed people to seek haven no matter how they got to the United States.
Two federal trial judges had issued conflicting rulings on whether the new plan was lawful.
In July, Judge Timothy J. Kelly of the U.S. District Court in Washington, who was appointed by President Donald Trump, refused to block the administration’s rules.
That same day, Judge Jon Tigar of the U.S. District Court in San Francisco, who was appointed by President Barack Obama, blocked the new rules, saying they were put in place without following the required legal procedures.
He ordered the administration to continue accepting applications from all otherwise eligible migrants, even if they had not sought asylum elsewhere on their journey north.
Tigar said his ruling applied across the nation. Such nationwide injunctions have been the subject of much criticism, but the Supreme Court has never issued a definitive ruling on whether and when they are proper.
When Tigar blocked a different aspect of the administration’s asylum policies in November, Trump criticized the ruling, saying it had been issued by an “Obama judge.” Chief Justice John Roberts Jr. issued a rare rebuke to Trump.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said, adding that an “independent judiciary is something we should all be thankful for.”
When Tigar’s earlier ruling reached the Supreme Court in December, the court refused to issue a stay by a 5-4 vote. Roberts joined the court’s four-member liberal wing to form a majority.
In August, the 9th U.S. Circuit Court of Appeals, in San Francisco, narrowed the geographic scope of Tigar’s more recent ruling while it considered the administration’s appeal, saying it should apply only in the territorial jurisdiction of the 9th Circuit, which includes two border states, California and Arizona. (Two other border states, Texas and New Mexico, are in the jurisdictions of other federal appeals courts.)
On Monday, however, Tigar again imposed a nationwide injunction, saying he had been presented with additional evidence justifying one. “Anything but a nationwide injunction,” he wrote, “will create major administrability issues.” On Tuesday, the 9th Circuit temporarily blocked the new injunction and ordered the two sides to submit briefs on whether it should issue a stay.
In an emergency application to the Supreme Court last month seeking a stay of Tigar’s initial ruling while the case moved forward, Francisco argued that the administration was entitled to skip ordinary notice and comment requirements for new regulations because foreign affairs were at issue and because a delay after the announcement of the procedures “may prompt an additional surge of asylum seekers.”
In any event, Francisco wrote, the 9th Circuit’s narrower injunction, covering only the western states in its territorial jurisdiction, was still too broad. At most, he wrote, the injunction should cover only clients of the four groups challenging the new policy — East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and Central American Resource Center in Los Angeles.
In response, the American Civil Liberties Union, which represents the groups along with the Center for Constitutional Rights and the Southern Poverty Law Center, said the administration was trying to rewrite a federal immigration law enacted in 1980. There was no reason, the ACLU said, to alter “the 40-year-long status quo while this case is heard on an expedited basis in the court of appeals.”
“The current ban would eliminate virtually all asylum at the southern border, even at ports of entry, for everyone except Mexicans (who do not need to transit through a third country to reach the United States),” the ACLU’s brief said. “The court should not permit such a tectonic change to U.S. asylum law.”