We don’t know the reasoning behind the Supreme Court’s ruling Wednesday allowing the Trump administration at least temporarily to declare tens of thousands of migrants ineligible to seek asylum. (The ruling was issued without an explanation.) But it’s disturbing, and disheartening, that the U.S. government and the nation’s highest court so willingly disregard the health, safety and legal rights of people in desperate need.
U.S. law states explicitly that people can arrive anywhere along the border — not just at official ports of entry — and ask for asylum. Is that a good policy? That’s a question for congressional debate and resolution. But it is the law. Nevertheless, the Trump administration, with an eye on the flow of Central American migrants, adopted a new policy in July under which no asylum requests will be taken from migrants unless they have first been denied protection in a country they crossed to reach the U.S.
A federal judge in California, looking at the asylum laws and the process the administration followed in drafting this new procedure, issued a nationwide injunction halting implementation until the legal issues are addressed. The U.S. 9th Circuit Court of Appeals lifted the stay and, after a bit more of a legal kerfuffle, the issue landed before the Supreme Court, which has expressed growing misgivings about judges issuing nationwide restraints. On Wednesday the justices once again gave this headstrong president too much headroom and let the administration continue enforcing the new policy as the legal merits are fought over in lower courts — never mind the potential injury to people suddenly stripped of their legal right to seek asylum.
In practice, this will mean that unless impoverished asylum seekers from Guatemala, Honduras and El Salvador manage to hop a plane from their home countries direct to, say, Los Angeles International Airport, the government will refuse to entertain their asylum requests because they did not first seek protection in Mexico. It’s unclear that the Trump administration has the legal authority to do that, which is part of the legal challenge, but in typical fashion the administration is bulling ahead and daring anyone to stop it.
With this policy in place, it doesn’t take much of an imagination to see human-smuggling rings turning to ships to deposit asylum seekers on U.S. soil without crossing through Mexico, in the process recreating in the Gulf of Mexico the kind of problems Europe is facing from migrants sailing across the Mediterranean from North Africa. And it should be noted that the asylum seekers aren’t limited to Central Americans. They include Cubans, Haitians and people from African and South American nations, among other locales. And Mexico, riven by drug wars and peppered with border regions so dangerous that the U.S. government advises Americans against traveling there, is not a safe harbor, as required under international refugee agreements.
Meanwhile, the administration has forced 42,000 asylum seekers who reached the U.S. to wait in Mexico while their applications are processed, and is opening two temporary sets of courtrooms in tent complexes in the border towns of Brownsville and Laredo, Texas, to handle the cases. As The Times’ Molly Hennessy-Fiske reported Wednesday, the Department of Homeland Security has barred access to the courts by the public, lawyers who do not have a case on the docket for that day, and the media, forcing reporters to watch testimony via teleconference from San Antonio — where most of the judges also work — rather than in the courtroom itself. The reason? They built the courts close to ports of entry where there are “law enforcement sensitive priorities.” So the government isn’t even bothering to come up with a plausible reason for denying public access to immigration courts that the Department of Justice says as a matter if policy should be open.
One of the nation’s strengths is using transparency to safeguard against government abuses of its authority and of the rights of individuals. But here the administration seeks to reduce public access to monitor how is handles asylum petitions from people who, for the most part, don’t have a lawyer or a functional understanding of U.S. immigration law.
The Trump administration, of course, has no interest in granting asylum to brown-skinned people from what the president so derisively dismissed as “shithole countries.” These policies upend our notion of the rule of law, our efforts to hold government accountable for its actions, and our tradition as a reliable guardian of the rights of the persecuted.