Supreme Court Justice Sonia Sotomayor. Photo: Diego M. Radzinschi/ National Law Journal.

The U.S. Supreme Court on Wednesday boosted the Trump administration's efforts to limit immigration by allowing a rule to take effect that requires asylum seekers to first seek refuge in countries they pass through before coming to the United States.

In Barr v. East Bay Sanctuary Covenant, the high court, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, temporarily lifted a nationwide injunction blocking enforcement of the so-called "third country" asylum rule. The injunction first was imposed July 24 by U.S. District Judge Jon Tigar o the Northern District of California. Tigar said the rule was likely invalid because it was "inconsistent with existing asylum laws."

The high court, without explanation, granted the government's request for a stay pending the outcome of the government's appeal to the U.S. Court of Appeals for the Ninth Circuit, or disposition by the Supreme Court of a petition for review, if a petition is filed following the Ninth Circuit decision.

Describing the government's stay request as "extraordinary," Sotomayor wrote:

"Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this 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."

Granting a stay pending an appeal should be an "extraordinary act," Sotomayor said, but the government appears to treat this approach as the "new normal." And while the government used to request it rarely, "now it does so reflexively," she wrote.

Under the asylum rule, Honduran and Salvaduran asylum seekers, for example, would have to apply first for protection from Guatemala or Mexico and be denied asylum before being eligible to apply in the United States.

In his request to block the injunction pending an appeal, U.S. Solicitor General Noel Francisco wrote, "The injunction prohibits the Executive Branch from implementing an interim final rule adopted to address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations."

U.S. Solicitor General Noel Francisco. Photo: Diego M. Radzinschi / NLJ

He also argued that U.S. asylum law expressly authorizes the relevant federal agencies to adopt new categorical bars to asylum, and the "third country" rule bar is consistent with the asylum statute's other provisions.

"At a minimum, the injunction is vastly overbroad," argued Francisco, and "violates the well-settled rule that injunctive relief must be limited to redressing a plaintiff's own injuries, and unduly interferes with the Executive's authority to establish immigration policy."

The organizations opposing the asylum rule, represented by Lee Gelernt of the American Civil Liberties Union Foundation, accused the administration of "a blatant end-run" around the congressionally enacted asylum law.

"Congress specifically addressed when an applicant can be denied asylum based on possible protection in a third country: when the applicant has been 'firmly resettled' in a third country or when the United States has signed a formal safe-third-country agreement with another country that provides access to a full and fair process for the individuals we turn away," wrote Gelernt. "These are the only two exceptions permitted by the statute and neither is met here."

The U.S. Court of Appeals for the Ninth Circuit on Aug. 16 granted the administration a partial stay of Tigar's injunction. The appellate panel, ruling 2-1, barred the rule's effect only in the nine states within the Ninth Circuit which include the border states of Arizona and California.

The panel ruled that Tigar failed to provide enough support for a nationwide or universal injunction, but that the challengers to the asylum rule were likely to prevail on the merits of their claims. But Tigar on Sept. 9 reinstated the injunction's nationwide scope pending a trial on the rule's legality. He said that the appellate court's action permitted him to consider an augmented record on the need for such an injunction.

Tigar then found that the organizations challenging the rule would suffer harms from the diversion of resources caused by having the rule operate outside of, but not inside of the Ninth Circuit. He also said a nationwide injunction was necessary to maintain uniform immigration policy and anything but a nationwide injunction would create "major administrability issues." Nationwide relief, he added, is also supported by the federal Administrative Procedure Act.

One day after Tigar acted, the Ninth Circuit issued an administrative stay of the district court's Sept. 9 injunction which, in effect, restored the state of affairs that existed when the Justice Department filed its application in the Supreme Court to block Tigar's July 24 injunction.

The Justice Department was supported in the high court by amicus briefs from the Immigration Reform Law Institute and 11 states led by Arizona. East Bay Sanctuary received amicus support from 28 nonprofit organizations and law school clinics that represent asylum seekers across the country.

 

The U.S. Supreme Court's order is posted below:

 

 

Read more:

Judge Tigar Doubles Down on National Injunction for Trump's Latest Asylum Rule

9th Circuit Panel Fractures Over National Injunctions With Trump's Latest Asylum Order

A Fair Day in Court Starts With an Independent Immigration Court System