Immigration: Supreme Court Maintains Ban on Proposed Asylum Restrictions

By Michael Bournas-Ney

A few days before the Christmas holiday, the United States Supreme Court voted to maintain a ban on new immigration restrictions proposed by the Trump administration. The December 21 vote, in which Chief Justice Roberts joined Justices Breyer, Ginsburg, Kagan and Sotomayor, blocked new rules that would limit applications for asylum by those seeking to enter the United States.

A decision by Judge Jon S. Tigar on November 19 imposed the nationwide injunction on the proposed restrictions, which would affect asylum seekers entering the United States solely through “designated ports of entry.” Judge Tigar found that this proposed rule contravened the language of the Immigration and Naturalization Act, which permitted asylum applications to be filed by immigrants who arrive in this country “whether or not at a designated port of arrival.”

There have been two other key developments since our last update.  First, on December 7, the Court of Appeals for the Ninth Circuit, by a vote of 2-1, denied the government’s application for a stay of Judge Tigar’s temporary restraining order (TRO) pending appeal, finding that the proposed government rule “is likely inconsistent with existing United States law” (p. 4 of the Ninth Circuit decision).

Second, on December 19, back in California district court, Judge Tigar held a hearing on whether to grant a request from the Department of Justice to lift his TRO.  Instead of agreeing to that request, Judge Tigar extended the original injunction, holding:

The harms to those seeking asylum are … even clearer, and correspondingly the public interest more plainly supports injunctive relief. Not surprisingly then, the result of the present motion is the same: the Court again concludes that Plaintiffs have established an overwhelming likelihood that the new rule barring asylum is invalid. Accordingly, the Court will grant Plaintiffs’ request for a preliminary injunction.

The December 21 Supreme Court vote denied the government’s application for a stay of the November restraining order, and thus refused to permit the Trump administration to implement its proposed alteration to existing asylum law. Stay tuned.