Earlier this month, the U.S. Supreme Court ruled to allow a new executive-branch regulation, which effectively ends asylum at the southern border, to remain in place for the next several months, while its legality is challenged in the federal courts. The ruling will now make it impossible for tens of thousands of migrants to apply for asylum when they reach the U.S.; it will also block thousands of other asylum seekers currently in Mexico, who have already begun the application process during the past two months under a different Administration policy, called the Migrant Protection Protocols, or the “Remain in Mexico” program. It was a puzzling outcome. The Court not only broke with nearly four decades of legal precedent but also seemed to contradict its own position from less than a year ago. In December, 2018, the Supreme Court faced a nearly identical question, following an earlier order by President Trump to ban asylum at the border. On that occasion, the Supreme Court ruled that the ban could not remain in effect as it moved through the lower courts.
This weekend, I spoke with Lee Gelernt, a lawyer with the A.C.L.U., who is leading the litigation against both of Trump’s asylum bans. The Trump Administration has insisted that there is a right and a wrong way for immigrants to come to the U.S; the converse of that argument is that there is also a right and a wrong way for the U.S. government to make immigration policy. According to Gelernt, the recent asylum bans have failed to meet the most basic standards laid out by Congress in the Refugee Act of 1980 and the Administrative Procedure Act, which invalidates policies that are “arbitrary and capricious.” Now, Gelernt said, “there are so many different policies in place, at so many different stages of litigation,” that the over-all effect is approaching a kind of chaos. “It’s becoming difficult to figure out which policies are in place, which are enjoined, which are partially enjoined, and what it all means,” he said. Our conversation has been edited and condensed.
By Jonathan Blitzer for NEWYORKER.COM
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