With Two Justices Dissenting, Supreme Court Allows Ban on Immigrants Seeking Asylum to Remain

On September 11, 2019, in a 7 to 2 vote, the U.S. Supreme Court effectively permitted the Trump administration to enforce a ban on Central American asylum-seekers, while an appeal continues in a lower court.

The ruling in William Barr, Attorney General, et al. v. East Bay Sanctuary Covenant et al, was temporary in nature, as the Court order stated  “If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically.  If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.”

Justice Sonia Sotomayor wrote a dissenting opinion, with Justice Ruth Bader Ginsburg joining. 

The Sotomayor dissent traces the history of the case since midsummer, noting that “The Attorney General and Secretary of Homeland Security promulgated the rule at issue here on July 16, 2019.  See 84 Fed. Reg. 33829.  In effect, the rule forbids all Central Americans – even unaccompanied children – to apply for asylum in the United States if they enter or seek to enter through the Southern Border, unless they were first denied asylum in Mexico or another third country.”

A group of organizations filed suit challenging the rule in the Federal District Court in Northern California. In that challenge, Judge Jon Tigar preliminarily enjoined the rule nationwide on July 24, 2019, stating, according to Justice Sotomayor, that the plaintiff groups “were likely to prevail.”  Judge Tigar found the rule was “likely unlawful for at least three reasons,” according to Justice Sotomayor: One, “the rule was inconsistent with the asylum statute”,  two, the Government did not provide “advance notice and opportunity for public comment” and three, “the government’s action was likely arbitrary and capricious.”

The Government appealed Judge Tigar’s decision requesting “a complete” stay of the preliminary injunction from U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit rejected that request but did narrow the injunction from a nationwide injunction to the jurisdiction of the Ninth Circuit.  The Circuit also “expedited the appeal and permitted the District Court to consider whether additional facts warrant a broader injunction.”

However, writes Justice Sotomayor, on September 9 Judge Tigar “reinstated a nationwide injunction based on new facts.”  The Government requested a stay of the September 9 ruling in both the District Court and the Ninth Circuit.  The Ninth Circuit “granted an Administrative stay to allow further deliberation.”

The Government then filed an application for a stay pending appeal before the U.S. Supreme Court.

Justice Sotomayor writes that she opposes granting the stay because “the Court has not considered the new evidence, nor does it pause for the lower courts to resolve the Government’s pending motions and  “[I ]n doing so, the Court side-steps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rule making process.  I fear the Court’s precipitous action today risks undermining the intergovernmental processes that encourage deliberation, public participation and transparency.”

Justice Sotomayor concludes, “In sum, granting a stay pending appeal should be an ‘extraordinary act.’ ”  “Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal.  Historically, the Government has made this kind of request rarely; now it does so reflexively.”

“I respectfully dissent.”