A new rule put into place by the Trump Administration has been allowed to come into effect thanks to the Supreme Court, putting a new limit on people seeking asylum through the U.S.-Mexico border. By a 7-2 vote, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, the court decided that the new asylum rule could go into effect, restricting asylees from seeking asylum in the United States through the Mexican border unless they first attempted to seek asylum elsewhere. The new rule potentially affects tens, if not hundreds, of thousands of asylum applications, and is retroactive to July 17th
, when the rule was first issued.
The new rule affects most non-Mexican asylum seekers who enter the United States through the U.S.-Mexican border. It affects a screening known as a “credible fear” interview, in which a person applying for asylum must demonstrate that they have a reason to fear they would be subject to danger in their home country. Under this new rule, a person would not be able to pass this interview if they entered through the U.S.-Mexico border, were not from Mexico, and did not attempt to seek asylum in any other country on their way to the United States.
When the rule was announced, advocates sued to have the rule stopped from coming into effect. On appeal, the 9th Circuit Court of Appeals issued an injunction against the rule, preventing it from coming into effect until the case could be fully decided. However, they limited the scope of the injunction to only the states under the jurisdiction of the 9th Circuit, which includes Alaska, Hawaii, California, Arizona, Idaho, Montana, Nevada, Oregon and Washington. The government then asked the Supreme Court for a stay on the injunction.
In the Supreme Court case Barr v. East Bay Sanctuary Covenant (588 U.S. ___, 2019), the court issued a stay on an injunction issued by the 9th Circuit Court of Appeals that prevented the enforcement of the new asylum rule. While the Court decision gives only a brief explanation about its decision, the dissent calls into question the legality of the new rule, citing the 9th Circuit opinion that the rule may have violated existing asylum law about whether a person could be admitted based on the possibility of finding safe harbor in another country. The dissent also calls into question whether the Trump Administration properly followed administrative procedure in issuing the rule, and whether it may have violated the Administrative Procedures Act and its rules about advance notice and an opportunity for public comment. Finally, it cited the District Court’s ruling that said the new rule was “arbitrary and capricious,” failing to meet the “rational basis” test for constitutionality.
If you are a non-citizen looking to make an asylum application, or are having trouble with any other immigration issue, please call the attorneys at Bretz & Coven LLP. We will help you through the difficult process of applying for asylum status, protecting your rights and giving you the best chance possible at attaining legal residency. To schedule a consultation with our New York immigration lawyers, call (212) 267-2555.
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